26

constraints must inform judicial interpretation of
such enactments.

Vague terms present a particularly acute danger
that a statute regulating political speech will impinge
upon an individual’s First Amendment rights and
stifle speech. See Citizens United, 130 S. Ct. at 889
(‘The First Amendment does not permit laws that
force speakers to retain a campaign finance attorney,
conduct demographic marketing research, or seek
declaratory rulings before discussing the most salient
political issues of our day. Prolix laws chill speech
for the same reason that vague laws chill speech:
People ‘of common intelligence must necessarily guess
at [the law’s] meaning and differ as to its applica-
tion.”) (quoting Connally v. General Constr. Co.,
269 U.S. 385, 391 (1926)) (alteration original). Any
ambiguity in a statute regulating protected First
Amendment activity should be resolved in a
defendant’s favor to avoid an inappropriate chilling
effect on constitutionally-protected political activities.
See Citizens United, 130 S. Ct. at 891 (“First
Amendment standards . . . ‘must give the benefit of
any doubt to protecting rather than stifling speech.”)
(citation omitted); Buckley, 424 U.S. at 40-41, 77-78.

Rather than apply these principles to the interpret-
tation of Section 441f, the court of appeals ignored
them and instead adopted an expansive, non-textual
reading of the statute that introduces the very
vagueness and uncertainty that these principles
are designed to curb. The failure of the court of
appeals to adequately consider the First Amendment
protections of political speech in interpreting Section
441f is an error that threatens political speech far
more broadly than this particular case and that
warrants certiorari. See Watts v. United States, 394

27

U.S. 705, 707 (1969) (per curiam) (“[A] statute ...,
which makes criminal a form of pure speech, must
be interpreted with the commands of the First
Amendment clearly in mind.”).”

B. Due Process Principles and the Rule of
Lenity Require that Criminal Statutes
be Interpreted Narrowly and Ambigui-
ties be Resolved in Favor of the Defen-
dant.

Due process principles require that a criminal
statute like Section 441f proscribe the conduct for
which an individual may be criminally penalized in
terms that “provide a person of ordinary intelligence
fair notice of what is prohibited.” Holder v. Huma-
nitarian Law Project, 561 U.S. ___, __, 180 S. Ct. 2705,
2718 (2010) (citation and internal quotation marks
omitted).” Because nothing in the terms of Section

21 The government has charged such “conduit” contributions
as violations of Section 441f on numerous occasions both before
and since the court of appeals’ decision in this case. See, eg.,
Indictment, United States v. Danielczyk, No. 11-cr-00085-JCC
(E.D. Va. Feb. 16, 2011) (charging two individuals with violat-
ing, among other statutes, Section 441f based on allegations of
conduit contributions); Information, United States v. Geneske,
No. 09-cr-00435-SDW (D.N.J. June 11, 2009) (charging defen-
dant with violating Section 441f for allegedly reimbursing or
advancing funds to “straw donors” for their contributions). See
generally Brief Amicus Curiae of the Federal Election Commis-
sion at 10 n.4, United States v. O'Donnell, No. 09-50296 (9th Cir.
Sept. 23, 2009) (listing criminal judgments obtained by the U.S.
Department of Justice alleging violations of Section 441f based
on “concealed conduit-contribution schemes”).

2 The FECA imposes significant criminal penalties on per-
sons that violate Section 441f. Based on the allegations in the
Indictment, Petitioner faces a significant prison term and fine,
see 2 U.S.C. § 437g(d), and a conviction, even prior to final



32a

1. The Indictment Alleges the Essential
Elements of a Violation of 18 U.S.C. § 1001.

O'Donnell argues that the Indictment’s statement
that he “knowingly and willfully” caused the false
statements fails to allege the mens rea required to
convict a person for causing a false statement in the
context of FEC reporting. Id. at 9. He cites a Third
Circuit case which required a heightened mens rea to
be liable under § 1001 in conjunction with 18 U.S.C.
§ 2b, for causing another to make a false statement,
rather than directly making the statement himself.
See United States v. Curran, 20 F.3d 560, 570-571 (3d
Cir. 1994). In Curran, the Third Circuit held that a
defendant must: (1) know that the treasurer had a
legal duty to report the actual source of contributions;
(2) have acted with the specific intent to cause the
treasurer to submit a report that did not accurately
provide the relevant information; and (3) have known
that his actions were unlawful. Id. The Curran
court reached this conclusion after noting that there
was no “controlling case law expounding the proper
construction of willfulness required for a charge
under § 2b linked with § 1001 in a [FECA] case.”
Id. at 568. It analogized to Ratzlaf v. United States,
114 S. Ct. 655 (1994), in which the defendant was
accused of structuring cash deposits to evade the
federal regulation requiring banks to report amounts
deposited in excess of $10,000. The Supreme Court
held that the jury instructions were incorrect because
they failed to state that the prosecution must show
the defendant knew the structuring was unlawful.
Curran, 20 F.3d at 568 (citing Ratzlaf, 114 S. Ct. at
663). Relying on Ratzlaf, the Curran court found jury
instructions incorrect that “failed to state that the
government had the burden of proving that defen-

33a

dant knew of the campaign treasurers’ obligation to
submit contribution reports to the [FEC].” Id. at 570.

The D.C. Circuit has expressly rejected the Third
Circuit’s heightened mens rea requirement and
instead held that the mens rea for § 1001 requires
only that “the defendant knew the statements to be
made were false” and “the defendant intentionally
caused such statements to be made by another.”
United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir.
1999). In Hsia, the court explained that Curran’s
reliance on Ratzlaf was flawed. It noted that Ratzlaf
“did not universalize a broad reading of ‘wilfully’ and
thus overturn the general rule that ignorance of the
law is no excuse. Ratzlaf found a knowledge-of-
criminality requirement in a statute that indepen-
dently required the act at issue to be ‘for the purpose
of evading’ various reporting requirements; reading
‘wilfully violating’ there as only requiring intention
would have made it surplusage. In [cases brought
under § 1001 and § 2b], no such problem exists.” Id.
(citing Ratzlaf, 114 S. Ct. at 658).

While the Ninth Circuit has not considered the
issue of § 1001 violations in the FEC reporting
context, it has held in other contexts that “the mens
rea needed to violate § 1001 [requires] only that the
defendant act ‘deliberately and with knowledge.”
United States v. Kim, 95 Fed. Appx. 857, 861 (9th Cir.
2004) (citing United States v. Heuer, 4 F.3d 723, 732
(9th Cir. 1993) (“to willfully make a false statement
under § 1001, the defendant must have the specific

. intent to make a false statement”)); see also United

States v. Dominguez-Mestas, 687 F. Supp. 1429,
1433 (S.D. Cal. 1988) (explaining that for conviction
under § 1001, the prosecution must prove the intent
element by showing “that the defendant knew the



24a

23 (1983)) (explaining that “where Congress wanted
to provide for successor liability in the Coal Act, it
did so explicitly, as demonstrated by other sections in
the Act that give the option of attaching liability
to ‘successors’ and ‘successors in interest... . If
Congress meant to make a preenactment successor in
interest like Jericol liable, it could have done so
clearly and explicitly”). In such situations, the
Supreme Court has explained that “we refrain from
concluding that the differing language in the two
subsections has the same meaning in each. We would
not presume to ascribe this difference to a simple
mistake in draftsmanship.” Id. Further, “it is a
‘cardinal principle of statutory construction’ that ‘a
statute ought, upon the whole, to be so construed
that, if it can be prevented, no clause, sentence, or
word shall be superfluous, void, or insignificant.”
TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001). Lastly,
“deference to [an agency’s] statutory interpretation is
called for only when the devices of judicial construc-
tion have been tried and found to yield no clear sense
of congressional intent.” Gen. Dynamics Land Sys. v.
Cline, 540 U.S. 581, 600 (2004).

1. 2 U.S.C. § 441f Is Unambiguous and Does
Not Prohibit O’Donnell’s Conduct.

Section 441f provides: “No person shall make a
contribution in the name of another person or
knowingly permit his name to be used to effect such a
contribution, and no person shall knowingly accept a
contribution made by one person in the name of
another person.” 2 U.S.C. § 441f. The term “contribu-
tion” includes “any gift, subscription, loan, advance,
or deposit of money or anything of value made by any
person for the purpose of influencing any election for
Federal office.” 2 U.S.C. § 431(8)(A)(i). In contrast,

25a

§ 441a, which sets forth the maximum limits on
contributions to a candidate or political committee,
provides that for purposes of that section only,
“all contributions made by a person, either directly
or indirectly, on behalf of a particular candidate,
including contributions which are in any way
earmarked or otherwise directed through an interme-
diary or conduit to such candidate, shall be treated as
contributions from such person to such candidate.”
2 U.S.C. § 441 a(aX8) (emphasis added). Similarly,
Congress explicitly provided that for purposes of
contributions or expenditures by national banks,
corporations, or labor organizations, “the term
‘contribution or expenditure’ includes a contribution
or expenditure, as those terms are defined in 2 U.S.C.
§ 481, and also includes any direct or indirect
payment . .. or gift of money . . . or anything of value
...272US.C. § 441b (emphasis added). Likewise,
Congress specifically made it unlawful for “a foreign
national, directly or indirectly, to make a contribution
or donation of money or other thing of value.”
2. U.S.C. § 441e(a)(1) (emphasis added).

The Government has charged O’Donnell with
violating § 441f by soliciting and reimbursing his
employees’ contributions. (Indictment 4.) O’Donnell
argues that § 441f prohibits only the act of making a
contribution and providing a false name, not asking
others to make contributions in their names and
reimbursing them for it. (Def’s Mem. P. & A. 4.)
He points out that while Congress explicitly used
the words “indirectly,” “conduit” and “intermediary”
in other parts of FECA, § 441f includes no such
language. See 2 U.S.C. §§ 441a; b; e, f. Indeed, it
appears that if Congress intended § 441f to apply to
indirect contributions, or contributions made through
a conduit or intermediary, it would have included



42a

9. Defendant O'DONNELL signed a bank check
bearing number 2445 in the amount of $4,000 drawn
on defendant ODONNELL’S bank account in order
to reimburse conduit contributions to EFP.

10. Defendant O'DONNELL caused a bank check
bearing number 2446 to be issued in the amount of
$4,000 drawn on defendant O’DONNELL'S bank
account in order to reimburse conduit contributions
to EFP.

11. Unindicted co-conspirator D.V. wrote out a bank
check bearing number 2448 in the amount of $4,000
drawn on defendant O’DONNELL’S bank account in
order to reimburse conduit contributions to EFP.

12. Defendant O'DONNELL signed a bank check
bearing number 2450 in the amount of $2,000 drawn
on defendant O'DONNELL’S bank account in order
to reimburse a conduit contribution to EFP.

COUNT TWO
[2 U.S.C. §§ 441f, 437g(d); 18 U.S.C. § 2(b)]

On or about the dates listed below, in Los Angeles
County, within the Central District of California,
defendant PIERCE O'DONNELL, through his agents
and employees, knowingly and willfully made, and
caused to be made, contributions in the names of
other persons that aggregated more than $10,000
during the 2003 calendar year. More specifically,
defendant O'DONNELL knowingly and willfully
caused other persons to contribute to EFP, an autho-
rized political committee supporting the election ofa
candidate for President of the United States, and
advanced to those persons and reimbursed those per-
sons a total of more than $10,000 for their contribu-
tions:

43a

Date Contribution Conduit
Amount Contributor
3/27/03 $2,000 BR.
3/27/03 $2,000 RV.
3/31/03 $2,000 EL.
3/31/03 $2,000 AL.
3/31/03 $2,000 JF.
3/31/03 $2,000 RF.
3/31/03 $2,000 JR.
3/31/03 $2,000 CA.
3/31/03 $2,000 HE.
3/31/03 $2,000 E.0.
3/31/03. $2,000 M.O.
3/31/03 $2,000 LW.
3/31/03 $2,000 G.W.
COUNT THREE

[18 U.S.C. § 1001; 18 U.S.C. § 2(b)]

In or about April 2003, in Los Angeles County,
within the Central District of California, in a matter
within the jurisdiction of the executive branch of
the Government of the United States, namely, the
Federal Election Commission, defendant PIERCE
O'DONNELL knowingly and willfully caused the
treasurer of EFP, an authorized political committee
supporting the election of a candidate for President of
the United States, to make a materially false state-
ment, namely, that certain individuals, including
B.R., H.E., and E.L., had each made a $2,000
contribution to EFP, when, in fact, as defendant


14

There simply is no basis in the text of Section 441f
for concluding that a so-called “conduit contribution”
made by a so-called “conduit contributor” using his or
her true name is a “contribution in the name of
another.” “[W]hen the statute’s language is plain,
the sole function of the courts—at least where the
disposition required by the text is not absurd—is to
enforce it according to its terms.” Dodd v. United
States, 545 U.S. 353, 359 (2005) (citation and internal
quotation marks omitted) (alteration original); see
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002)
(“As in all statutory construction cases, we begin with
the language of the statute. . . . The inquiry ceases if
the statutory language is unambiguous and the
statutory scheme is coherent and constituent.) (cita-
tion and internal quotation marks omitted); Caminetti
v. United States, 242 U.S. 470, 485 (1917) (“Where
the language is plain and admits of no more than one
meaning, the duty of interpretation does not arise,
and the rules which are to aid doubtful meanings
need no discussion.”) (citation omitted). Otherwise,
congressional intent is supplanted by undemocratic
judicial legislation. See James B. Beam Distilling Co.
v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J.,
concurring) (“[Judicial power] must be deemed to be
the judicial power as understood by our common-law

“4 Another district court has determined that Section 441f
applies to conduit or indirect contributions. See United States v.
Boender, 691 F. Supp. 2d 833, 838-42 (N.D. Ill. 2010). Various
other courts have assumed the same in dicta without analyzing
the issue. See, e.g., McConnell v. Federal Election Comm’n, 540
U.S. 98, 232 (2003), overruled on other grounds by Citizens
United v. Federal Election Comm'n, 558 U.S. __, _, 180 S. Ct.
876, 913 (2010); United States v. Serafini, 233 F.3d 758, 763 0.5
(8d Cir. 2000); United States v. Kanchanalak, 192 F.3d 1037,
1042 (D.C. Cir. 1999).

15

tradition. That.is the power to say ‘what the law is,’
not the power to change it.”) (citation omitted).

In concluding that Section 441f prohibits conduit
contributions, the court of appeals necessarily had to
reach beyond the text of Section 441f and the
definition of the “contributions” referenced therein.
It did so by both going beyond the text of Section 441f
and the statutory definition of what constitutes a
contribution and holding that the statute includes
expansive acts of involvement in making a contri-
bution based on a common dictionary definition
of the term “contribute.” Dictionary definitions are
properly used to give words in a statute their
ordinary meaning, not to expand or contradict
statutory definitions. See Federal Comme’ns Comm'n
v. AT&T Inc., 562 U.S. _, __ (2011) (slip op., at 5)
(“Person’ is a defined term in the statute; ‘personal’
is not. When a statute does not define a term, we
typically ‘give the phrase its ordinary meaning.”)
(citing Johnson v. United States, 559 U.S. _, _, 130
S. Ct. 1265, 1270 (2010)); Ransom v. FIA Card
Services, N.A., 562 U.S. _, __, 181 S. Ct. 716, 724
(2011) (consulting dictionary definition of key term in
statute at issue “[blecause the Code does not define
‘applicable”). The court of appeals’ resort to extrinsic
aids to interpret the statute is inconsistent with
fundamental principles that require courts to first
adhere to the plain text of statutes. Here, the plain
text of the statutory definitions of “contribution”
applicable to Section 441f and that applicable to
Section 441a not only fail to justify the resort to a
dictionary definition, but contradict the expansive
dictionary definition relied upon by the court of
appeals.



APPENDIX TABLE OF CONTENTS

APPENDIX A: Opinion of the United States
Court of Appeals for the Ninth Circuit

APPENDIX B: Order of the Court of
Appeals Denying Panel Rehearing and
Rehearing En Banc ..

APPENDIX C: Order of the Court of
Appeals Granting Petitioner's Motion to
Stay the Mandate..

APPENDIX D: Order of the United States
District Court for the Central District of
California Granting in Part and Denying
in Part Defendant’s Motion to Dismiss
Indictment

APPENDIX E: Indictment in the United
States District Court for the Central
District of California

Page

la



34a

statement was untrue”). In regards to other
statutes requiring willfulness, the Ninth Circuit has
explained: “the Supreme Court has recognized that
‘the word willfully’ is sometimes said to be ‘a word of
many meanings’ whose construction is often depen-
dent on the context in which it appears.” United
States v. Henderson, 243 F.3d 1168, 1171-72 (9th Cir.
2001) (citing Bryan v. United States, 524 U.S. 184,
191 (1998). “Often, in the criminal context, ‘in order
to establish a ‘willful’ violation, the Government must
prove that the defendant acted with knowledge that
his conduct was unlawful. In particular, proof of
knowledge of unlawfulness is required when the
criminal conduct is contained in a regulation instead
of in a statute, and when the conduct punished is not
obviously unlawful, creating a ‘danger of ensnaring
individuals engaged in apparently innocent conduct’.”
Id. at 1172 (internal citations omitted.)

Here, the conduct proscribed is contained in a
statute, not a regulation. In addition, requiring a
defendant to know the statements are false and
intentionally cause someone to make them is a suffi-
cient safeguard against punishing purely innocent
conduct. Moreover, the Court agrees with the .D.C.
Circuit’s analysis of § 1001 and rejection of the Third
Circuit’s heightened mens rea requirement. See Hsia,
176 F.3d at 522. Thus, the Government satisfies its
burden of proving a § 1001 violation by showing that
O'Donnell knew the statements to be made were false
and intentionally caused such statements to be made
by another. See id. Accordingly, the Indictment here,
which alleges that O’Donnell acted “knowingly and
willfully,” sufficiently states the essential element of
mens rea for a § 1001 and § 2b violation.

35a
2. The Statements at Issue Are Not
“Indisputably True”.

O’Donnell argues that the Court must dismiss
Count Three because he has a complete defense to
§ 1001 liability in that the EFP treasurer’s statement
to the FEC was “indisputably true.” (Def.’s Mem. P. &
A. 11.) FECA requires treasurers to report to the
FEC “the identification of each person . . . who makes
a contribution to the reporting committee . . . whose
contribution(s) have an aggregate amount or value in
excess of $200 within the calendar year.” 2 U.S.C.
§ 434(b)(3)(A). O'Donnell argues that FECA requires
reporting of the names of those who actually tender
funds to a campaign committee, not the “original
source” of those funds, and thus the EFP treasurer’s
statements were literally true. (Def.’s Mem. P. & A.
12-13.)

Once again, the Ninth Circuit has not considered
this issue. However, other courts that have consi-
dered the issue have held that “§ 434(b) of FECA
requires political committees to report the ‘true
source’ of hard money contributions; thus, statements
identifying conduits as the source of funds were not
literally true.” United States v. Kanchanalak, 192
F.3d 1037, 1042 (D.C. Cir. 1999) (citing Hsia, 176
F.3d at 523-24) (explaining that “as in Hsia, defen-
dants are alleged to have acted as conduits or utilized
others in making contributions to political commit-
tees in federal elections. By thus causing political
committees to report conduits instead of the true
sources of donations, defendants have caused false
statements to be made to a government agency”).


vi
TABLE OF AUTHORITIES

CASES Page

Almendarez-Torres v. United States, 523
US. 224 (1998).....sescsscsessessssssessesseeneeseenee 13
Barnhart v. Sigmon Coal Co., 534 U.S. 438

. 5,14
Bates v. United States, 522 U.S. 23 (1997).. 17
Bilski v. Kappos, 561 U.S. _, 180 S. Ct.

3218 (2010) 20
Buckley v. Valeo, 424 U.S. 1 (1976) 24, 25, 26
Caminetti v. United States, 242 U.S. 470

(1917). 14
Citizens nit v. lection
Comm’n, 558 U.S. 180 S. Ct. 876
14, 25, 26
Cleveland v. United States, 531 U.S. 12
(2000).....essessecsecsecsesssesssssessesseessessessecseestenee 30
Connally v. General Constr. Co., 269 U.S.
385 (1926)......csecsecsessesssecsessesseessssseeeeeseeseese 26
Connecticut Natl Bank v. Germain, 503
US. 249 (1992)... cccccseseccssesessseceseceeeeeereeee 20

Dodd v. United States, 545 U.S. 353 (2005) 14, 20

Duncan v. Walker, 533 U.S. 167 (2001) 17,19
Fasulo v. United States, 272 US.

1 @ 5°)/1;) ne 28
Federal Comme’ns Comm'n v. AT&T Inc.,

562 U.S. (2011) ..seeeseessecssseesesscsssteseeseae 15
Federal Election Comm’n v. Wisconsin

Right to Life, Inc., 551 U.S. 449 (2007)..... 25
Holder v. Humanitarian Law Project, 561

US. __, 180 S. Ct. 2705 (2010)... sees 27
Jama v. Immigration and Customs

Enforcement, 543 U.S. 335 (2005)............ 21
James B. Beam Distilling Co. v. Georgia,

501 U.S. 529 (1991) 14

vii
TABLE OF AUTHORITIES—Continued

Johnson v. United States, 559 U.S.
S. Ct. 1265 (2010)
Lexecon Inc. v. Milberg Weiss Bershad
Hynes & Lerach, 523 U.S. 26 (1998)........
Liparota v. United States, 471 U.S. 419
(1985)... .
McConnell v. Federal Election Comm'n,
540 U.S. 93 (2008)......esssecsecseecseenseeereseerees
McNally v. United States, 483 U.S. 350
(1987). .
NAACP v. , 371 U.S. 415 (1963).......
Pavelic & LeFlore v. Marvel Entm’t Group,
493 U.S. 120 (1989).....-secseceeeeeseees
Randall v. Sorrell, 548 U.S. 230 (2006)
Ransom v. FIA Card Services, N.A., 562
US. _, 181 S. Ct. 716 (2011)...........00
Reno v. American Civil Liberties Union,
521 U.S. 844 (1997).....ssesseseseeseececetsseessees
Russell v. United States, 369 U.S. 749
(1962)...cessscseesesssesssssseseessessesscssceneceneeneeseees
Russello v. United States, 464 U.S. 16

Skilling v. United States, S.
S. Ct. 2896 (2010)......sessecsesceeeseereeresentesseese
TRW Inc. v. Andrews, 534 U.S. 19 (2001)...
United States v. Boender, 691 F. Supp. 2d
833 (N.D. Ill. 2010) ..
United States v. Danie
00085-JCC (E.D. Va. Feb. 16, 2011), eseeenee
United States v. Geneske, No. 09-cr-00435-
SDW (D.N.J. June 11, 2009) ..........eeeceeee
United States v. Kanchanalak, 192 F.3d
1087 (D.C. Cir. 1999)

Page
15
17

29

14

.. 28-29
10, 28

25
15
10
13

17

17


20a
APPENDIX B

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
[Filed Dec 06 2010
Molly C. Dwyer, Clerk
U.S. Court of Appeals]

No. 09-50296
D.C. No. 2:08-cr-00872-SJO-1
Central District of California, Los Angeles

UNITED STATES OF AMERICA,
Plaintiff - Appellant,
Vv.

PIERCE O'DONNELL,
Defendant - Appellee.

ORDER

Before: GOODWIN, CANBY and FISHER, Circuit
Judges.

The panel has voted to deny Appellee’s petition for
panel rehearing. Judge Fisher has voted to deny the
petition for rehearing en banc, and Judges Goodwin
and Canby so recommend.

The full court has been advised of the petition for
rehearing en banc, and no judge has requested a vote
on whether to rehear the matter en banc. Fed. R.
App. P. 35.

The petition for panel rehearing and petition for
rehearing en banc, filed June 28, 2010, is DENIED.

21a
APPENDIX C
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

[Filed Dec 30 2010
Molly C. Dwyer, Clerk
U.S. Court of Appeals]

No. 09-50296
D.C. No. 2:08-cr-00872-SJO-1
Central District of California, Los Angeles

UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.

PIERCE O’DONNELL,
Defendant - Appellee.

ORDER

Before: GOODWIN, CANBY, and FISHER, Circuit
Judges.

Appellee’s motion to stay the issuance of the
mandate for 90 days, filed December 7, 2010, is
granted.

'



28

441f conveys to a person of ordinary intelligence that
its proscription, as the court of appeals defined it,
extends to “straw donor contributions, in which a
defendant solicits others to donate . . . and furnishes
the money for the gift either through an advance or a
prearranged reimbursement,” the court of appeals’
ruling contravenes these principles. App. 19a.

Due process principles concerning the application
of criminal statutes are especially relevant when the
conduct covered by a criminal provision involves
activity within the sphere of First Amendment pro-
tections. See Button, 371 U.S. at 438 (“Precision of
regulation must be the touchstone in an area so
closely touching our most precious freedoms.”);
Winters v. New York, 333 U.S. 507, 509-10 (1948) (“A
failure of a statute limiting freedom of expression to
give fair notice of what acts will be punished and
such statute’s inclusion of prohibitions against
expressions, protected by the principles of the First
Amendment violates an accused’s rights under proce-
dural due process and freedom of speech or press.”).

More generally, as this Court explained in McNally
v. United States:

[W]hen there are two rational readings of a
criminal statute, one harsher than the other, we
are to choose the harsher only when Congress
has spoken in clear and definite language. . . .
“There are no constructive offenses; and before
one can be punished, it must be shown that his
case is plainly within the statute.” Fasulo v.
United States, 272 U.S. 620, 629 (1926).

judgment, would result in the suspension of Petitioner’s license
to practice law. CAL. BuS. & PROF. CODE § 6102(a).

29

483 U.S. 350, 359-60 (1987) (citations omitted) (empha-
sis added).

The rule of lenity ensures that these principles are
observed.” See United States v. Lanier, 520 U.S. 259,
265-66 (1997) (describing “three related manifestations
of the fair warning requirement” of the “right to due
process,” including “the canon of strict construction of
criminal laws, or rule of lenity, [which] ensures fair
warning by so resolving ambiguity in a criminal
statute as to apply it only to conduct clearly covered.”)
(citations omitted); Liparota v. United States, 471
U.S. 419, 427 (1985) (“Application of the rule of lenity
ensures that criminal statutes will provide fair
warning concerning conduct rendered illegal and
strikes the appropriate balance between the legisla-

28 The importance of the rule of lenity as a means of protecting
individual rights was among the subjects covered during a
recent congressional hearing on the subject of overcriminaliza-
tion. As noted by Representative Scott, the September 28, 2010,
hearing was “supported by a [] broad group of organizations.”
Reining in Overcriminalization: Assessing the Problems, Pro-
posing Solutions, Hearing Before the Subcomm. on Crime,
Terrorism, and Homeland Security of the H. Comm. on the
Judiciary, 111th Cong. 2 (Sept. 28, 2010) (Serial No. 111-151)
(statement of Rep. Scott, Chairman, H. Subcomm. on Crime,
Terrorism, and Homeland Security). Representative Scott also
noted: “We can see the impact of the unfair and vague
legislation at the hands of overzealous prosecutors when we look
at the prison population.” Id. Moreover, a report filed in
connection with testimony at the hearing described “federal
criminal offenses [as] frequently drafted without the clarity

: and specificity that have traditionally been required for the

imposition of criminal liability” and “[dJespite the Supreme
Court’s statements of [the rule of lenity’s] importance, the rule
has not been uniformly or consistently applied by the lower
federal courts.” Id. at 52, 57 (statement of Brian W. Walsh,
Senior Legal Research Fellow, the Heritage Foundation).



4a

For purposes of the limitations imposed by this
section, all contributions made by a person,
either directly or indirectly, on behalf of a partic-
ular candidate, including contributions which are
in any way earmarked or otherwise directed
through an intermediary or conduit to such
candidate, shall be treated as contributions from
such person to such candidate. The intermediary
or conduit shall report the original source and
the intended recipient of such contribution to the
Commission and to the intended recipient.

2 U.S.C. § 441a(a)(8). Although O’Donnell is not
charged with violating § 441a(a)(8), it is relevant
because the parties dispute whether and how its
passage should influence our interpretation of § 441f.

STANDARD OF REVIEW

“We review de novo a district court’s decision to
dismiss an indictment based on an interpretation of a
federal statute.” United States v. Marks, 379 F.3d
1114, 1116 (9th Cir. 2004).

DISCUSSION
IL

The issue in this appeal is whether § 441f
proscribes only “false name” contributions or, as the
government contends, it also prohibits “straw donor”
contributions. A false name contribution is a direct
contribution from A to a campaign, where A
represents that the contribution is from another per-
son who may be real or fictional, with or without
obtaining that person’s consent. A straw donor
contribution is an indirect contribution from A,
through B, to the campaign. It occurs when A solicits
B to transmit funds to a campaign in B’s name,

5a

subject to A’s promise to advance or reimburse the
funds to B. Although employing different methods,
false name and straw donor schemes both facilitate
attempts by an individual (or campaign) to thwart
disclosure requirements and contribution limits.
O’Donnell argues as a matter of statutory interpreta-
tion that § 441f cannot apply to straw donor contri-
butions because, irrespective of A’s role in directing
and reimbursing the money, the straw donor B has
actually made the contribution, which is accurately
reported in B’s name. We disagree.

Statutory interpretation begins with the text. See
N.Y. State Conference of Blue Cross & Blue Shield
Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995).
To put the language of § 441f in context, we also
consider how related language is used in § 441a(a)(8).
See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)
(“The plainness or ambiguity of statutory language is
determined by reference to the language itself, the
specific context in which that language is used, and
the broader context of the statute as a whole.”).
Finally, we analyze § 441f in light of its purpose of
promoting disclosure and the broader structure of the
Federal Election Campaign Act (FECA). See Wilderness
Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1060
(9th Cir. 2003) (en banc) (“[T]he structure and purpose
of a statute may also provide guidance in determin-
ing the plain meaning of its provisions.”). Relying on
these tools of interpretation, we hold that § 441f
unambiguously applies to straw donor contributions.’

1 The only court to have squarely addressed this issue con-
cluded that § 441f applies to straw donor contributions. See
United States v. Boender, __ F. Supp. 2d __, 2010 WL 725318
(NLD. Ill. Feb. 24, 2010). Numerous cases have assumed the
same. See, e.g., McConnell v. FEC, 540 U.S. 93, 232 (2003), over-





22a
APPENDIX D

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

No. CR 08-00872 SJO

UNITED STATES OF AMERICA,
Plaintiff,
v.

PIERCE O’DONNELL,
Defendant.

ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANT’S MOTION TO DISMISS
INDICTMENT [Docket No. 20]

This matter is before the Court on Defendant
Pierce O’Donnell’s Motion to Dismiss Indictment,
filed March 16, 2009. Plaintiff United States of
America (the “Government”) filed an Opposition, to
which O’Donnell replied. The Court held a hearing on
this matter on June 2, 2009. Because of the following
reasons, O’Donnell’s Motion is GRANTED IN PART
and DENIED IN PART.

I. BACKGROUND

The Government alleges that O’Donnell and
an unindicted co-conspirator acting at O’Donnell’s
instruction solicited individuals, including employees
of O’Donnell’s law firm, to contribute a total of over
$10,000 in one year to “EFP,” an authorized political
committee supporting the election of a candidate for

23a.

President of the United States, and reimbursed
their contributions. Based on these allegations, the
Government indicted O’Donnell for: (1) conspiring to
make illegal campaign contributions in violation of
18 U.S.C. § 371 and the Federal Election Campaign
Act (“FECA”), 2 U.S.C. § 441f (‘Count One”); (2)
making and causing to be made illegal campaign
contributions in violation of 2 U.S.C. § 441f (“Count
Two”); and (3) knowingly and willfully causing ESP’s
treasurer to make materially false statements in
violation of 18 U.S.C. § 1001 (“Count Three”).

O’Donnell now moves to dismiss on the grounds
that the conduct alleged in Counts One and Two is
not prohibited, and Count Three fails to allege the
essential elements of the crime charged.

II. DISCUSSION

A. Counts One and Two Do Not Allege Prohi-
bited Conduct.

“In all statutory construction cases, [courts] begin
with the language of the statute. The first step ‘is to
determine whether the language at issue has a plain
and unambiguous meaning with regard to the partic-
ular dispute in the case.’ The inquiry ceases ‘if the
statutory language is unambiguous and ‘the statu-
tory scheme is coherent and consistent.” Barnhart v.
Sigmon. Coal Co., 534 U.S. 438, 450 (2002) (internal
citations omitted). In determining the meaning of a
statute, “it is a general principle of statutory
construction that when Congress includes particular
language in one section of a statute but omits it in
another section of the same Act, it is generally
presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Id.
at 452 (citing Russello v. United States, 464 U.S. 16,



22

significant differences in statutory language of
different provisions of the same statute cannot be
correct, especially where the alternative construction
advanced by the district court properly reflects the
relevant differences in statutory terms.

2. Avoiding Interpretations Rendering Por-
tions of a Statute Superfluous

Because Section 441a(a)(8) has a particularized
definition of contribution that does not apply to Sec-
tion 441f, the court of appeals’ interpretation of the
definition that does apply to Section 441f as including
by implication the Section 441a(a)(8) definition rend-
ers the latter superfluous. Section 441a(a)(8) states:

For purposes of the limitations imposed by this
section, all contributions made by a person,
either directly or indirectly, on behalf of a

reluctance is even greater when Congress has shown elsewhere
in the same statute that it knows how to make such a require-
ment manifest.”). Nor does the general definition of “contribution”
include “promise,” if somehow the government were now to
argue that it was Petitioner’s alleged promise to reimburse that
was the contribution—an omission that is clearly intentional
given that FECA’s definition of “expenditure,” but not of “con-
tribution,” does include a “written contract, promise, or agreement”
to make an expenditure. 2 U.S.C. § 431(9)(A) (2000). In fact,
the statutory definition of “contribution” previously included
“promise[s]” to make contributions, but that language was
dropped when the statute was amended in 1980. Compare
Federal Election Campaign Act of 1971, Pub. L. No. 92-225,
§ 301(e)(2), 86 Stat. 3, 12 (1972) (defining “contribution” to include
“a contract, promise, or agreement, whether or not legally enfor-
ceable, to make a contribution for any such purpose”), with
Federal Election Campaign Act Amendments of 1979, Pub. L.
No. 96-187, § 101, 93 Stat. 1339, 1340-42 (1980) (amending defi-
nition of “contribution” and discarding provision of earlier
definition that encompassed “promise[s]”).

23

particular candidate, including contributions
which are in any way earmarked or other-
wise directed through an intermediary or
conduit to such candidate, shall be treated
as contributions from such person to such
candidate. The intermediary or conduit shall
report the original source and the intended reci-
pient of such contribution to the Commission and.
to the intended recipient.

2 U.S.C. § 441a(a)(8) (emphasis added). If the mere
word “contribution” as used in Section 441f encom-
passed “direct. and indirect” contributions, “conduit”
contributions, and contributions “in any way earmarked
or otherwise directed through an intermediary,” then
all of the highlighted language above in Section
441a(a)(8) is superfluous, as it would already have
been covered by the general statutory definition of
“contribution.”

Moreover, the court of appeals’ conclusion that the
use of the term “contribution” in Section 441f encom-
passes both “direct and indirect” contributions would
render superfluous Congress’ use of “direct and indi-
rect” in other FECA provisions that explicitly address
“direct and indirect” transfers or contributions.”*

An interpretation which renders so many pro-
visions of FECA superfluous cannot be proper,
especially when there is an alternative logical

18 The FECA uses “directly and indirectly” in other provisions
describing contributions and payments. See, eg., 2 U.S.C.
§ 441e(a)(1) (prohibiting foreign nationals from making con-
tributions “directly or indirectly”); 2 U.S.C. § 441¢(a)(1) (2000)
(prohibiting government contractors from “directly or indirectly
... making] any contribution of money or other things of value”
to political parties, committees, or candidates).



6

App. 25a-26a. The district court concluded “the
statute is unambiguous in light of its plain language,
structure, and legislative history.” App. 28a. The
district court further stated: “However, assuming it
remained ambiguous after such analyses, the rule of
lenity would require the Court to interpret § 441f in
O’Donnell’s favor.” Id.

The court of appeals reversed, holding that Section
441f “prohibits a person from providing money to
others to donate to a candidate for federal office in
their own names, when in reality they are merely
‘straw donors.”® App. 2a. In doing so, the court of
appeals held that the language of Section 441f
“unambiguously applies to a defendant who solicits
others to donate to a candidate for federal office in
their own names and either advances the money or
promises to — and does — reimburse them for the
gifts.” App. 17a (emphasis added).® In reaching the
conclusion that the text of the statute “unambi-
guously” so applied, the court reasoned on the basis
of a dictionary definition of the term “contribute,”

5 Although the Indictment repeatedly refers to “conduit” con-
tributions and “conduit” contributors, the term “straw donor”
does not appear in it. See App. 37a-44a.

6 The terms “conduit,” “straw donor,” and “reimbursement”
appear nowhere in the text of Section 441f, the statute under
which Petitioner was charged. In addition, although the Indict-
ment quotes the statutory language addressing advances, the
Indictment factually alleges only reimbursements, not advances.
App. 37a-44a. Thus, this Petition does not raise, and this Court
need not consider, whether the result might be different if an
individual provided funds to third parties who then passed
those funds on to the campaign.

7

App. 7a-8a, although the term “contribution” as used
in Section 441f is defined in the statute.”

The court of appeals held that the text, context,
purpose, and structure of the statute favored the
government’s application of Section 441f to Peti-
tioner’s alleged conduct. App. 6a-18a. First, the court
of appeals considered the definition of “contribution”
set forth in FECA. App. 7a. Because, according to the
appeals court, the FECA definition of contribution
did not address “the salient question of who made the
contribution,” id. (emphasis original), the court
consulted a dictionary definition and concluded that
“the plain language of § 441f itself . . . encompasses
straw donor contributions,” App. 10a, despite the
fact neither the text of Section 441f nor the applicable
statutory definition of a “contribution” contains any
reference to “straw donors” or “conduits.”

Second, the court of appeals disagreed with the
district court’s reasoning that the absence of lan-
guage in or applicable to Section 441f defining
contributions made “either directly or indirectly” and

7 Section 431 states: “When used in this Act: . ..
(8)(A) The term “contribution” includes—

@ any gift, subscription, loan, advance, or deposit of
money or anything of value made by any person for
the purpose of influencing any election for Federal
office; or

(ii) the payment by any person of compensation for the
personal services of another person which are
rendered to a political committee without charge
for any purpose.

2 U.S.C. § 431(8)(A) (2000). Although not relevant to the issues
presented in this Petition, 2 U.S.C. § 431(8)(B) sets forth a
variety of payments or services that are not included in FECA’s
definition of “contribution.” See 2 U.S.C. § 431(8)(B).


16a

enacting § 441a(a)(8). Moreover, although § 44la
(a)(8) requires the original source of funds to be
reported, it addresses only the intermediary’s obliga-
tions and not the principal offender in the
straw donor scheme.® In contrast, § 441f under the
government’s interpretation properly criminalizes the
conduct of both parties involved.

D. Structure

Although we reject O’Donnell’s argument that
§ 441a(a)(8) was added to close a loophole for straw
donor contributions, we acknowledge that the govern-
ment’s interpretation of § 441f does result in an
overlap in FECA’s present structure. Both provisions
appear to require that a campaign contribution from
A through B be reported as a contribution from A.
The two provisions serve different purposes, however,
making the overlap unsurprising — and legally insig-
nificant. Congress enacted § 441a(a)(8) as part of its
reinstatement of contribution limits. As noted above,
the provision does not appear to be directed at
§ 441fs domain of criminalizing disclosure violations,
but rather with providing guidance on accounting for
purposes of calculating an individual’s contribution
totals. Given this fundamental difference in purpose,
evident from the text of the provisions as well as the
context in which they were passed, the overlap is less
troublesome than it would be if the two provisions
purported to address the same matter. Cf. TRW Inc.

5 Although § 441a(a)(8) does not place reporting obligations
on the original source, that source could violate 2 U.S.C.
§ 441a(a)(1)(A) by exceeding the individual contribution limit.
Generally, violations of § 441a become felonies when the contri-
butions total $25,000 during a calendar year, in contrast to
the $10,000 threshold for violations of § 441f. See 2 U.S.C.
§ 437g(d)(1).

17a

v. Andrews, 534 U.S. 19, 29-31 (2001) (rejecting an
interpretation of a statute’s general rule that would
have rendered a listed exception superfluous, where
both provisions addressed the same issue).

RK

[9] In sum, the text, purpose and structure of § 441f
all support the conclusion that the statute applies not
only to false name but also to straw donor contribu-
tions. We therefore hold that § 441f unambiguously
applies to a defendant who solicits others to donate
to a candidate for federal office in their own names
and either advances the money or promises to — and
does — reimburse them for the gifts.

That conclusion forecloses O’Donnell’s rule of lenity
argument. “The rule of lenity requires ambiguous
criminal laws to be interpreted in favor of the defen-
dants subjected to them.” United States v. Santos,
128 S. Ct. 2020, 2025 (2008) (plurality opinion). Lenity
does not, however, apply in the absence of a “grievous
ambiguity,” Huddleston v. United States, 415 U.S.
814, 831 (1974), that requires us to “guess as to what
Congress intended,” Ladner v. United States, 358
U.S. 169, 178 (1958). We are sensitive to the need to
require fair notice to defendants, but here the
statutory language, structure and purpose do not
leave the provision’s meaning “genuinely in doubt.”
United States v. Otherson, 637 F.2d 1276, 1285 (9th
Cir. 1980); see also Barber v. Thomas, 560 U.S. __,
No. 09-5201, slip op. at 13-14 (2010). The fair notice
concern seems especially inapposite in this case,
because O’Donnell seeks to create a textually dubious
loophole for himself by reading the two provisions to
criminalize only the behavior of the accomplices who
acted at his direction.



10a
[5] Considering the plain language of § 441f itself,
therefore, we conclude that it encompasses straw
donor contributions, whether accomplished through
the advancement or reimbursement of funds. Because
the context in which language is used is also relevant

to plain meaning, we turn to O’Donnell’s arguments
based on § 441a(a)(8).

B. Reading § 441f in Light of § 441a(a)(8)

[6] O'Donnell argues that additional language in
§ 441a(a)(8) but not present in § 441f requires inter-
preting the latter provision as having a more limited
scope, an argument the district court found persua-
sive. O’Donnell’s argument focuses on two phrases in
§ 441a(a)(8):

For purposes of the limitations imposed by this
section, all contributions made by a person,
either directly or indirectly, on behalf of a
particular candidate, including contributions
which are in any way earmarked or otherwise
directed through an intermediary or conduit to
such candidate, shall be treated as contributions
from such person to such candidate.

2 U.S.C. § 441a(a)(8) (emphasis added). He argues
that both of these italicized phrases would be unne-
cessary if the term “contribution” already encompassed
indirect gifts delivered through an intermediary.
From this language, he infers that “contribution,”
standing alone, must refer to direct contributions
delivered without the use of an intermediary. There-
fore, § 441fs use of “make a contribution” without
any reference to intermediaries or conduits indicates
that the provision is limited to false name contributions.
See Russello v. United States, 464 U.S. 16, 23 (1983)
(“[Wlhere Congress includes particular language in

lla

one section of a statute but omits it in another section
of the same Act, it is generally presumed that
Congress acts intentionally and purposefully in the
disparate inclusion and exclusion.” (quoting United
States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.
1972) (internal quotation marks omitted) (alteration
in original))).

O’Donnell’s argument is unpersuasive for two
reasons. First, Congress enacted § 441f and § 441a(a)(8)
at different times, a fact that weakens the Russello
presumption. See Gomez-Perez v. Potter, 128 S. Ct.
1931, 1940 (2008) (explaining that the Russello pre-
sumption is “ ‘strongest’ in those instances in which
the relevant statutory provisions were ‘considered
simultaneously when the language raising the impli-
cation was inserted’ ” (quoting Lindh v. Murphy, 521
U.S. 320, 330 (1997))). We have applied the Russello
presumption in at least one case in which the two
provisions were not enacted at the same time. See
United States v. Youssef, 547 F.3d 1090, 1094-95 (9th
Cir. 2008) (per curiam). But in Youssef, the two provi-
sions were more similar in purpose and structure,
and these parallels made the absence of a particular
word more telling than it otherwise would have been.
See id.; see also City of Columbus v. Ours Garage
& Wrecker Serv., Inc., 536 U.S. 424, 435-36 (2002)
(“The Russello presumption . . . grows weaker with
each difference in the formulation of the provisions
under inspection.”).* And even if the parallels were

4 In Youssef, both statutes at issue prohibited false state-
ments to government officials, and one included the word
“materially” to modify “false” whereas the other did not. Relying
in part on Russello, we declined to read a materiality require-
ment into the statute that omitted the modifier. See Youssef,
547 F.3d at 1094-95. In this case, as we explain further in
section I.D infra, the two provisions share some overlap but

[eee


IN THE
Supreme Court of the Gnited States

No. 10-_

PIERCE O’DONNELL,
Petitioner,

v.

UNITED STATES OF AMERICA,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Pierce O’Donnell respectfully petitions for a writ of
certiorari to review the judgment of the United
States Court of Appeals for the Ninth Circuit in this
case.

OPINIONS BELOW

The opinion of the United States Court of Appeals
for the Ninth Circuit, dated June 14, 2010, is pub-
. lished at 608 F.3d 546. App. 1a-19a. The district
court’s order granting in part and denying in part
Petitioner’s motion to dismiss the Indictment, dated
July 8, 2009, is unreported. App. 22a-36a. The
opinions are reproduced in the Appendix.


TABLE OF AUTHORITIES—Continued
Page

United States v. Kokinda, 497 U.S. 720
24
29

United States v. Santos, 553 U.S. 507
(2008)... 30

United States v.

Cir. 2000). 14

Vill. of Schaumburg v. Citizens for a Better
Env't, 444 U.S. 620 (1980)... 25

Watts v. United States, 394 U.S. 705 (1969) .. 26-27
Winters v. New York, 333 U.S. 507 (1948)... 28

CONSTITUTION

U.S. Const. amend I.
U.S. Const. amend V

STATUTES, LAWS, AND REGULATIONS

2US.C. § 481........ 7
2 U.S.C. § 481(8)(A)... 12, 13
2 U.S.C. § 431(8)(AW ... 21
2 U.S.C. § 431(8)(B).. 7
2 U.S.C. § 431(9)(A).. 22
2 U.S.C. § 487g(d)... 4, 27
2 U.S.C. § 487g(d)(1).. 4
2 U.S.C. § 437g(d\(1X. 4,9
2 U.S.C. § 487g(d)(1)(D) .. 4,9
2US.C. § 441a...... 3, 8, 15, 21
2 U.S.C. § 441a(a)(1). 18, 19, 21, 25
2 U.S.C. § 441a(a)(8). passim

ix
TABLE OF AUTHORITIES—Continued

Page

2 U.S.C. § 441c(a)(1)... 23
2 U.S.C. § 441e(a)(1) 23
2US.C. § 441f..... passim
28 U.S.C. § 1254(1). 2
Federal Election Campaign Act of 1971,

Pub. L. No. 92-225, 86 Stat. 3 (1972). 12, 22
Federal Election Campaign Act Amend-

ments of 1974, Pub. L. No. 93-443, 88

Stat. 1263 (1974) 20
Federal Election Campaign Act Amend-

ments of 1976, Pub. L. No. 94-283, 90

Stat. 475 (1976) 20
Federal Election Campaign

ments of 1979, Pub. L. No. 96-187, 93

Stat. 1339 (1980)... 22
11 C.F.R. § 110. 1(b)(6) 12
CaL. Bus. & PROF. CODE 28

RULE
Sup. Ct. R. 10(C).....ssssseseseseeeeseneteneneereeneatees 10
OTHER AUTHORITY

Reining in Overcriminalization: Assessing

the Problems, Proposing Solutions,

Hearing Before the Subcomm. on Crime,

Terrorism, and Homeland Security of

the H. Comm. on the Judiciary, 111th

Cong. (Sept. 28, 2010) (Serial No. 111-

151) 29
Brief Amicus Curiae of the Federal Election

Commission, United States v. O'Donnell,

No. 09-50296 (9th Cir. Sept. 23, 2009)..... 27


24

interpretation faithful to the plain language which
gives full meaning to the statutory language.

II. The Court of Appeals’ Expansive Non-
Textual Interpretation of Section 441f is
Contrary to Due Process and First
Amendment Principles.

A. The FECA Regulates First Amend-
ment Activities and Consequently
Must be Interpreted so as to Avoid
Chilling Protected Speech.

Far from giving Section 441f the narrow reading
that is required where a criminal statute regulates
conduct at the very core of the First Amendment, the
court of appeals gave it an expansive reading at odds
with its express language and established principles
of statutory construction.

; Contributing to political campaigns, including soli-
citing campaign contributions, is constitutionally-
protected activity under the First Amendment. See
Buckley v. Valeo, 424 U.S. 1, 14 (1976) (“The [Federal
Election Campaign] Act’s contribution and expenditure
limitations operate in an area of the most funda-
mental First Amendment activities.”); see also United
States v. Kokinda, 497 U.S. 720, 725 (1990) (“Solicita-
tion is a recognized form of speech protected by the
First Amendment.”) (citations omitted). Much of the
Petitioner’s conduct as alleged in the Indictment is
entirely lawful, including soliciting others to make
political contributions. The law also does not forbid
reimbursing the contributions of others per se, so long
as the original source of such funds is reported (and
that reporting duty is on the contributor tendering
the funds to the political committee) and individual

25

contribution limits are observed.” Thus, because
solicitation and contributions are in the sphere of
constitutionally-protected activity, judicial construc-
tion of the statute in question must respect bedrock
notions of First Amendment jurisprudence. The
court of appeals did not address these principles and
its holding flatly contravenes them.”

It is axiomatic that controls and limitations imposed
by Congress on political speech activities and campaign
contributions implicate “the freedoms of ‘political
expression’ and ‘political association.” Randall v.
Sorrell, 548 U.S. 230, 246 (2006) (plurality opinion)
(quoting Buckley, 424 U.S. at 15, 23); see Vill. of
Schaumburg v. Citizens for a Better Env't, 444
US. 620, 633 (1980) (“Our cases have long protected
speech even though it is in the form of ... a
solicitation to pay or contribute money.”) (alterations
to original and internal quotation marks omitted).
When Congress enacts legislation impinging on these
constitutionally-protected activities, the statute must
both “further[] a compelling interest and [] [be]
narrowly tailored to achieve that interest.” Citizens
United, 130 S. Ct. at 898 (quoting Federal Election
Comm'n v. Wisconsin Right to Life, Inc., 551 U.S. 449,
464 (2007) (opinion of Roberts, C.J.)). The same

19 Exceeding such limits is a criminal offense separate from
Section 441f, see 2 U.S.C. § 441a(aX(1), which the government
elected not to charge in this case. App. 37a.

2 Despite Petitioner raising First Amendment concerns in his
brief, see supra note 8, the court of appeals did not discuss the

| First Amendment considerations implicated by Section 441f in

its opinion. App. 1a-19a. Rather, the court of appeals concluded
that Section 441f was unambiguous without considering the
First Amendment issues implicated by its decision (and, as
discussed in Part ILB, infra, only briefly addressed due process
and rule of lenity considerations). App. 17a-18a.



4

More specifically, the Indictment alleged that Peti-
tioner and an unindicted co-conspirator “conspired
and agreed to make conduit contributions that aggre-
gated more than $10,000 within a calendar year, that
is, contributions in the names of others, in violation
of 2 U.S.C. §§ 437g(d)® and 441f.” App. 40a. Petitioner
allegedly “would solicit individuals to make contribu-
tions to EFP, and would inform such individuals that

*In relevant part, 2 U.S.C. § 437g(d)(1) provides:
(A) Any person who knowingly and willfully commits a
violation of any provision of this Act which involves the
making, receiving, or reporting of any contribution, dona-
tion, or expenditure—

Gi) aggregating $25,000 or more during a calendar
year shall be fined under Title 18, or imprisoned
for not more than 5 years, or both; or

Gi) aggregating $2,000 or more (but less than $25,000)
during a calendar year shall be fined under such
title, or imprisoned for not more than 1 year, or both.

(D) Any person who knowingly and willfully commits a
violation of section 441f of this title involving an amount
aggregating more than $10,000 during a calendar year
-shall be—

(@ imprisoned for not more than 2 years if the amount
is less than $25,000 (and subject to imprisonment
under subparagraph (A) if the amount is $25,000 or
more); .

(ii) fined not less than 300 percent of the amount
involved in the violation and not more than the
greater of —

($50,000; or
(II) 1,000 percent of the amount involved in the
violation; or

iii) both imprisoned under clause (i) and fined under
clause (ii).

2 U.S.C. §§ 437g(d)(1)(A), (D).

5

he would reimburse their contributions.” Id. Petitioner
and an unindicted co-conspirator allegedly “would
collect and receive contributions to EFP from the
individuals who they solicited (hereafter the ‘conduit
contributors’) and cause their contributions to be
received by EFP.” Id. In addition, Petitioner
allegedly “would sign bank checks drawn on the
account of defendant O’Donnell reimbursing the
conduit contributors for their contributions to EFP.”
Id. The Indictment does not allege that Petitioner
used any name other than his own when providing
reimbursement subsequent to the making of the con-
tributions by others in their own names. App. 37a-44a.

After briefing and argument, the district court
dismissed Counts One and Two of the Indictment.‘
App. 36a. The district court held that Petitioner's
alleged conduct of reimbursing individuals for
contributions made by those individuals in their true
names “does not fall within the ambit of § 441f.” App.
81a. The district court reasoned:

[Ilf Congress intended § 441f to apply to indirect
contributions, or contributions made through a
conduit or intermediary, it would have included
explicit language, as it did in the other sections
of the same statute. See Barnhart v. Sigmon Coal
Co., 534 U.S. at 452. Moreover, if § 441f covered
“conduit” and “indirect” contributions, there
would be no need for Congress to have explicitly
included those terms in other sections of FECA.

4 Count Three, which is not at issue in this Petition, was dis-
missed without prejudice on the government’s motion. See
Order Dismissing Count Three Without Prejudice, United States
v. O’Donnell, No. 08-CR-00872-SJO (C.D. Cal. June 29, 2009).


la
APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 09-50296
D.C. No. 2:08-cr-00872-SJO-1
OPINION

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

Vv.

PIERCE O'DONNELL,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding

Argued and Submitted
January 13, 2010—Pasadena, California

Filed June 14, 2010

Before: Alfred T. Goodwin, William C. Canby, Jr.,
and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher



No. 10-1094

In THE
Supreme Court of the United Sta

WY 6- UMRIIOZ

PIERCE O’DONNELL,
Petitioner,

61 :0l

v.

UNITED STATES OF AMERICA,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

GEORGE J. TERWILLIGER III
Counsel of Record

DANIEL B. LEVIN

DANIEL T. BORK

WHITE & CASE LLP

701 13th Street N.W.

Washington, D.C. 20005

(202) 626-3600

gterwillger@whitecase.com

March 7, 2011 Counsel for Petitioner

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 ~ WasHINGTON, D.C. 20002


10

where it threatens to have a chilling effect beyond
Petitioner's ease. If criminal provisions in FECA
are given interpretations that are not only
unsupported—but actually contradicted—by express
statutory language and well-established principles of
statutory construction, then the threat to con-
stitutionally protected political activity will be
substantial.’

Moreover, criminal statutes are not elasticized
enforcement authority that prosecutors or courts may
stretch at will. They are instead confined to their
textual proscriptions and, if ambiguous, are to be
interpreted in favor of the accused. The decision of
the court of appeals exceeds the textual limits of
Section 441fs proscriptions and thereby improperly
rewrites a criminal statute. Moreover, the court of
appeals’ decision fails to account for the obvious
import of another section of FECA, Section 44la
(a)(8), which was properly considered and relied upon
by _the district court when it concluded that
Tetitioner's conduct was beyond the reach of Section

. The flaw in the court of appeals’ reasoning on the
interplay of the two statutory provisions is readily

?° See Sup. Ct. R. 10(c) (stating that certiorari may be

when “a United States court of appeals has decided on ietent
question of federal law . . . in a way that conflicts with relevant
decisions of this Court”). See NAACP v. Button, 371 U.S, 415,
433 (1963) (“These [First Amendment] freedoms are delicate and
vulnerable, as well as supremely precious in our society. The
threat of sanctions may deter their exercise almost as potently
as the actual application of sanctions.”) (citations omitted); see
also Reno v. American Civil Liberties Union, 521 U.S. 844, 874
(1997) (noting risk that vague statutes may chill protected
expression).

11

apparent. Section 441f states an absolute prohibition—
the making of a campaign contribution in the name of
another is prohibited without exception. In contrast,
Section 441a(a)(8) regulates and controls, but does
not prohibit, conduit contributions. Thus, as even the
government admitted below, the court of appeals’
ruling allows prosecutors to deem some, but not all,
conduit contributions to be criminal violations under
Section 441f. The difference, according to the govern-
ment below, is that conduit contributions reported
and within individual contribution limits would not
violate Section 441f, but those not meeting these, or
presumably other, regulatory requirements are fair
game for a Section 441f prosecution. The text of
Section 441f provides no basis for such distinctions.
In addition, this construct results in the untenable
circumstance where the culpability of the original
source for a Section 441f violation turns on whether a
third party—the actual contributor—makes a report
required under an entirely different section of the
statute.

The court of appeals’ ruling upends Congress’
carefully tailored statutory distinctions in Sections
441f and 441a(a)(8) governing conduct subject to
First Amendment protections. Thus, the appeals
court’s opinion ignores well-established principles of
statutory construction, long-standing rules concerning
the need to narrowly construe criminal statutes
impinging on core First Amendment values, and
settled law regarding due process considerations and
the application of the rule of lenity when construing
ambiguity in criminal statutes. Certiorari is justified
by these errors, especially where the opinion below
will provide precedential support to similar judicial
rewriting of narrowly tailored congressional enact-



8

“otherwise directed through an intermediary or :

conduit” and the inclusion of that language in the
specialized definition of contribution for purposes of
Section 441a had to be viewed as a purposeful
distinction by Congress. App. 10a-14a; see App. 24a-
27a (district court’s analysis of the interplay between
Sections 441a(a)(8) and 441f).

Third, the court of appeals consulted the legislative
history of the Federal Election Campaign Act of 1971.
The government had conceded that there is no
relevant contemporary legislative history regarding
Section 441f. Government’s Opening Brief at 47,
United States v. O'Donnell, No. 09-50296 (9th Cir. Sept.
14, 2009) (“The government has found no relevant
discussion of now-Section 441f in the 1971 Act’s
legislative history ....”). Nevertheless, the court of
appeals, referencing post-adoption legislative activity
and the government’s and amicis’ views on the objec-
tives of the statute, ruled that the legislative history
supported the prosecutors’ interpretation of Section
441f. App. 14a-16a. The court of appeals acknowl-
edged that the interpretation “result[s] in an overlap
in FECA’s present structure,” but nevertheless
decided that the “structure” of Section 441f also
supported its conclusion. App. 16a-17a.

Finally, because the court of appeals ruled that
Section 441f was “unambiguous[]” it held that the
rule of lenity did not apply. App. 17a-18a. The court
of appeals did not address the impact of any First
Amendment considerations on its statutory construc-
tion, an issue which was properly raised and preserved
below.®

8 See, e.g., Brief of Defendant-Appellee at 49-52, United States
v. O'Donnell, No. 09-50296 (9th Cir. Nov. 9, 2009) (addressing

9

The court of appeals also rejected Petitioner’s claim
that the Indictment filed against him was defective
“because it charges him with reimbursing contribu-
tions made by others rather than with making
contributions himself.” App. 18a. Although “allega-
tions that [Petitioner] reimbursed the contributions
of others[] alone might not clearly state a legal
violation,” the court of appeals found the Indictment
was sufficient because it “reasonably describeld]
reimbursements as the particular method used to
violate the ban on contributing in the name of others.”
App. 18a-19a.°

REASONS FOR GRANTING THE PETITION

Certiorari is warranted to correct the court of
appeals’ erroneous ruling in construing a criminal
statute relating to political speech, especially

the impact of First Amendment concerns on the interpretation
of criminal statutes and stating that “Section 441f must be
narrowly interpreted so as to limit the restrictions on constitu-
tionally-protected speech to the text of the statute”).

° The court of appeals’ conclusion as to the sufficiency of the
Indictment was erroneous. Under the court of appeals’ interpre-
tation of Section 441f, a violation does not occur if the “straw
donor” reports the original source of the funds. See App. 4a-5a
(describing a “straw donor contribution” as one in which the
straw donor transmits funds in the straw donor’s name). Only
knowing violations of Section 441f are crimes, see 2 USC.
§§ 437g(d)(1XA), (D), but the Indictment does not allege that
Petitioner had knowledge that the “straw donors” would fail to
report—as they are required by law to do—Petitioner as the
original source (if he was or so became) of the contributions
described in the Indictment. Thus, even under the court of
appeals’ construct of Section 441f, the decision to reverse the
district court’s dismissal was an error because the Indictment
fails to factually allege an essential element of the offenses

charged.


38a

2. FECA defined “Federal office” as the office of
President or Vice President of the United States or
Senator or Representative in the United States
Congress.

3. FECA defined “political committee” as a commit-
tee, club, association or other group of persons that
receives contributions aggregating in excess of $1,000
during a calendar year or that makes expenditures
aggregating in excess of $1,000 during a calendar
year.

4. FECA defined “election” to include a general,
special, primary, or runoff election and a convention
or caucus of a political party with authority to
nominate a candidate.

5. FECA defined “principal campaign committee”
as a political committee designated and authorized by
a candidate for Federal office. FECA required that a
candidate for Federal office designate a principal
campaign committee.

6. Under FECA, a candidate for Federal office who
received contributions or made disbursements for his
or her campaign was deemed an agent of the candi-
date’s authorized political committee(s).

7. FECA required each political committee to have
a treasurer who was required to file periodic reports
with the Federal Election Commission identifying,
among other things, persons whose contributions
aggregated in excess of $200 within the calendar year
(or per election cycle in the case of authorized
committees of a candidate for Federal office) by
name, address, and occupation and the contributions
provided by those contributors by date and amount.

8. FECA defined a “contribution” as, among other
things, any gift, loan, advance, or deposit of money or

39a

anything of value made by any person for the purpose
of influencing any election for Federal office.

9. FECA defined an “authorized committee” as the
principal campaign committee or any other political
committee authorized, in writing, by a candidate for a
Federal office to receive contributions or make
expenditures on behalf of such candidate.

10. FECA prohibited the following:

a. An individual from making a contribution, or
contributions, that in the aggregate exceeded $2,000,
to any candidate and the candidate’s authorized
political committees with respect to any election for
federal office; and

b. An individual from making a contribution in
the name of another person or knowingly permitting
his name to be used to effect such a contribution (the
person in whose name such a contribution is made is
known as a “conduit contributor”).

B. Parties and Entities

11. EFP was an authorized political committee of a
candidate for Federal office.
C. Incorporation By Reference

12. These General Allegations are incorporated
by reference into each and every count of this
Indictment.

COUNT ONE
[18 U.S.C. § 371, 2 U.S.C. §§ 437g(d), 441f]

A. THE OBJECT OF THE CONSPIRACY

; Beginning in or after February 2003 and continu-
ing to on or about April 21, 2003, in Los Angeles
County, within the Central District of California,


14a
would share the same supposedly anomalous feature

of being dependent on the effect of subsequent events. _ §

If we agreed that O’Donnell’s objection warranted
excluding reimbursement schemes from the reach of
§ 441f, we would have to conclude that § 441a(a)(8)’s
reference to indirect contributions similarly encom-
passes only funds that the original source has
advanced to intermediaries. O’Donnell himself does
not read § 441a(a)(8) in this manner, which reinforces
our earlier conclusion that § 441f covers such
reimbursement schemes so long as they have been
prearranged and effectuated.

C. Purpose

An examination of statutory purpose reinforces our
interpretation of the text. As noted earlier, Congress
originally enacted § 441f as part of the Federal Elec-
tion Campaign Act of 1971, which overall sought to
regulate campaign finance through a regime of dis-
closure requirements. For example, in addition to
§ 441fs prohibition, the Act required campaigns to
keep detailed information about all contributors who
donated a minimum amount and to file regular public
reports. See 2 U.S.C. §§ 432(c), 434(b) (1972). Simul-
taneously, the Act eliminated the individual contri-
bution limits that had been in place under existing
law. See 1971 FECA § 203, 86 Stat. at 9-10 (amending
18 U.S.C. § 608). Congress believed that full disclosure
would make contribution limits unnecessary. See
S. Rep. No. 92-229, at 122 (1971).

In this light, the congressional purpose behind
§ 441f — to ensure the complete and accurate disclosure
of the contributors who finance federal elections — is
plain. Our reading of the statute as applying to straw
donor contributions is entirely consistent with this
purpose, because such contributions undermine

lba

transparency no less than false name contributions
do by shielding the identities of true contributors.
The same is true of our specific textual conclusion
that O’Donnell made the contributions under § 441f,
because it is implausible that Congress, in seeking to
promote transparency, would have understood the
relevant contributor to be the intermediary who
merely transmitted the campaign gift.

Moreover, if § 441f were limited to false name
contributions, then straw donor schemes would have
been unregulated at least until 1974, when Congress
adopted § 441a(a)(8). We think it highly unlikely that
a Congress seeking to promote disclosure, and willing
to eliminate contribution limits as an alternative
means of regulating campaign finance, would have
intended to leave out straw donor contributions,
which were a recognized concern at the time. See,
e.g., Alexander Heard, The Costs of Democracy 359-60
(1960) (describing how “[dJummy contributors” were
used both to avoid disclosure as well as to evade
contribution limits).

[8] To this reasoning, O’Donnell responds that Con-
gress did leave a loophole in 1971, that the loophole
was contrary to FECA’s purpose and that Congress
therefore closed the loophole by enacting § 441a(a)(8)
in 1974. Thus, he contends, the enactment of
§ 441a(a\(8) confirms his interpretation of § 441f. We
disagree. Section 441a and the 1974 amendments to
FECA served primarily to reinstate contribution
limits. See 1974 FECA § 101(a), 88 Stat. at 1263-64.
There is nothing in the language of § 441a(a)(8) to
indicate that the provision was directed at the
disclosure concerns of § 441f. Indeed, had Congress
been concerned about a loophole in § 441f, it likely
would have amended that provision rather than



12a

stronger, § 441f was passed three years earlier than a
§ 441a(a)(8), so the choice of wording in the latter |

offers little insight into the meaning of the former.
See Almendarez-Torres v. United States, 523 U.S.

224, 237 (1998) (declining to interpret provisions with *

reference to later enacted laws that did not, among
other possibilities, “declare the meaning of earlier
law” or “reflect any direct focus by Congress upon the
meaning of the earlier enacted provisions”).

Second, the Russello presumption applies with
limited force here because the language used in § 441f
is broad rather than specific. Section 441f does not,
for example, include “directly” but omit the word
“indirectly.” Nor does § 441f specify a number of
covered ways to “make a contribution” while omitting
“conduit” from the list. In either of those situations,
the absence of the words used in § 441a(a)(8) could
indicate an intention to exclude their application in
§ 441f. But it makes less sense to draw that inference
when, as here, the provision at issue uses broader
language that encompasses the meaning of the
absent words and thus did not need to expressly
include them. See Royal Foods Co., Inc. v. RJR Hold-
ings, Inc., 252 F.3d 1102, 1107 n.6 (9th Cir. 2001)
(“Merely because a statute’s plain language does
not specify particular entities that fall under its
definition, does not mean that the statute is
ambiguous as to all those who do fall under it.”).

[7] The comparison to § 441a(aX8) actually under-
mines O’Donnell’s interpretation, because the language
of that provision shows that indirect gifts are merely
particular types of contributions, subsumed within

otherwise are less aligned in purpose and structure than the
statutes in Youssef.

13a

the general concept. If Congress had understood
§ 441a(a)(8) to reach more broadly than § 441f, there
are several ways it could have so indicated. For
example, § 441a(a\(8) could have referred to “con-
tributions, which for purposes of this section include
indirect gifts,” a construction that would imply that
the same word, used elsewhere, should not have that
expanded meaning. Similarly, the provision could have
referred to “contributions or conduit gifts,” which
would have suggested that conduit gifts are a distinct
concept for which Congress would use a distinct term.
Instead, § 441a(a)(8)’s identification of indirect or
conduit gifts as particular types of contributions
reinforces our conclusion that the unqualified term,
standing alone, should be accorded its full range of
meaning.

Finally, our examination of § 441a(a)(8) demon-
strates that O’Donnell’s timing argument regarding
§ 441f proves too much, because it would preclude
liability for reimbursement schemes under the former
provision as well. Central to O’Donnell’s argument
that § 441f does not reach his conduct is his
contention that § 441a(a)(8) separately requires that
intermediaries report the original source of the funds
that they donate. He thus relies on § 441a(a)(8) to
argue that his narrow reading of § 441f would not
create a loophole for straw donor contributions. Yet
both provisions are subject to the same concern about
the timing anomaly created by reimbursed gifts.
Although § 441a(a)(8) includes additional language
regarding indirect contributions, it does not specifi-

’ cally acknowledge that a person who receives the

original source’s funds after transmitting a donation
could still be considered an intermediary. Thus, the
language of both provisions could be read to focus
only on the moment a contribution is made, so they



2
JURISDICTION

The court of appeals entered judgment on June 14,
2010. App. 1a. It denied Petitioner’s timely petition
for panel rehearing and petition for rehearing en
banc on December 6, 2010. App. 20a. The jurisdiction
of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The First Amendment to the U.S. Constitution
provides in relevant part:

Congress shall make no law . . . abridging the
freedom of speech ... . "6

The Fifth Amendment to the U.S. Constitution
provides in relevant part:

No person shall be . . . deprived of life, liberty, or
property, without due process of law... .

Section 441f of Title 2 of the United States Code
provides:

No person shall make a contribution in the name
of another person or knowingly permit his name
to be used to effect such a contribution, and no
person shall knowingly accept a contribution
made by one person in the name of another
person.

Section 441a(a)(8) of Title 2 of the United States ©

Code provides:

For purposes of the limitations imposed by this
section, all contributions made by a person,
either directly or indirectly, on behalf of a partic-
ular candidate, including contributions which are
in any way earmarked or otherwise directed
through an intermediary or conduit to such can-

3

didate, shall be treated as contributions from
such person to such candidate. The intermediary
or conduit shall report the original source and
the intended recipient of such contribution to the
Commission and to the intended recipient.

STATEMENT OF THE CASE

On July 24, 2008, a grand jury returned a three-
count Indictment against Petitioner Pierce O’Donnell.
The Indictment alleged that between February
and April 2003, Petitioner, using his own name,
“reimbursed” completed “contributions” that other
individuals made in their own names to EFP, an
authorized political committee of a candidate for
Federal office.1 App. 39a-43a. According to the
Indictment, Petitioner allegedly solicited thirteen
individuals to contribute to EFP. App. 42a-43a.
These individuals each provided to EFP a contribution
of $2,000 using their own names, and Petitioner, by
checks in his name, subsequently reimbursed them in
the amount of their contributions. App. 40a-48a.

The Indictment charged Petitioner with violating a
provision of the Federal Election Campaign Act
(“FECA”), 2 U.S.C. § 441f* (Count II), conspiracy to
violate Section 441f (Count I), and false statements
related to campaign contributions (Count III). App.
39a-44a.

1 Ag recognized by the court of appeals, “EFP” as used in the
Indictment refers to the Edwards for President committee. See
App. 3a.

2 “Section 441” refers to 2 U.S.C. § 441f (2000), “Section
441a(a)(8)” refers to 2 U.S.C. § 441a(aX8) (2000), and “Section
441a” refers to 2 U.S.C. § 441a. References to Title 2 are to the
2000 United States Code, as amended through Supplement II,
unless otherwise noted.



30

ture, the prosecutor, and the court in defining
criminal liability.”) (citation omitted).

This “familiar principle that ‘ambiguity concerning
the ambit of criminal statutes should be resolved
in favor of lenity,” Skilling v. United States, 561
US. _, _, 130 S. Ct. 2896, 2932 (2010) (quoting
Cleveland v. United States, 531 U.S. 12, 25 (2000)),
was not applied by the court of appeals in this
case. Instead, it ruled that because Section 441f
“anambiguously” prohibits the conduct alleged in the
Indictment, the rule of lenity was not implicated.
App. 17a-18a. The court of appeals reached the
conclusion that the statutory text was unambiguous
despite its resort to extrinsic materials to interpret
the statute, and its acknowledgement that the inter-
pretation it adopted “result{s] in an overlap in FECA’s
present structure.” App. 16a. Because the court of
appeals’ ruling necessarily involved resolution of
ambiguity in the terms of Section 441f, it was error
for it to resolve that ambiguity against the Petitioner.
See United States v. Santos, 553 U.S. 507, 514 (2008)
(plurality opinion) (“The rule of lenity requires ambi-
guous criminal laws to be interpreted in favor of the
defendants subjected to them.”) (citations omitted);
id. at 519 (“We interpret ambiguous criminal statutes
in favor of defendants, not prosecutors.”).

As detailed above, the plain language of the
relevant FECA provisions and well-established rules
of statutory interpretation compel the conclusion that
Section 441a(a)(8) and not Section 441f governs the
lawful parameters of indirect political contributions
involving conduits or intermediaries. At the very
least, in light of those considerations, there is
ambiguity as to whether Section 441f prohibits
reimbursement of “conduit contributions” made in the

31

true name of the “conduit.” Due process and the rule
of lenity require that any such ambiguity be resolved
in Petitioner’s favor. The court of appeals’ failure to
follow these well-established principles, especially in
the context of political speech, has implications that
reach far beyond Petitioner’s case and justify granting
certiorari to review and correct the decision below
and the erroneous approach it embodies.

CONCLUSION

For the reasons set forth above, this petition for a
writ of certiorari should be granted.

Respectfully submitted,

GEORGE J. TERWILLIGER III
Counsel of Record

DANIEL B. LEVIN

DANIEL T. BORK

WHITE & CASE LLP

701 13th Street N.W.

Washington, D.C. 20005

(202) 626-3600

gterwillger@whitecase.com

Counsel for Petitioner



28a

contributions by national banks, corporations, and
labor organizations. During debate on a proposed bill
and amendment to add language defining “contribu-
tion” to “include any direct or indirect payment,”
Senator Hansen was asked whether an employee
could make a contribution and be reimbursed by his
corporate employer. Hansen replied that doing so
“would constitute a violation of law . . . as an indirect
payment.” 117 Cong. Rec. 43,381 (1971) (emphasis
added). Senator Hayes agreed. Id. This discussion
demonstrates that Congress used the term “indirect”
to cover reimbursements.

b. The Rule of Lenity

The rule of lenity “requires ambiguous criminal
laws to be interpreted in favor of the defendants
subjected to them.” United States v. Santos, 128
S. Ct. 2020, 2025 (2008) (internal citations omitted).
“[T]he rule applies ‘for those situations in which a
reasonable doubt persists about a statute’s intended
scope even after resort to the language and structure,
legislative history, and motivating policies of the
statute.” United States v. Devorkin, 159 F.3d 465,
469 (9th Cir. 1998) (internal citations omitted). Here,
the statute is unambiguous in light of its plain
language, structure, and legislative history. However,
assuming it remained ambiguous after such analyses,
the rule of lenity would require the Court to interpret
§ 441f in O’Donnell’s favor.

3. The Government’s Remaini ents
Are Unpersuasive.

The Government contends that “funneling money
to another person (through either an advance or
reimbursement) in order for that person to make a
contribution is basically a contribution in the name of

29a

another person,” and that O’Donnell “essentially
made a contribution in the name of another person.”
(Pl’s Opp’n 5, 11 (emphasis added).) It notes that
several courts, including the Ninth Circuit, have
described § 441f as the section that “prohibits the
use of ‘conduits’ to circumvent [FECA’s] restrictions.”
Goland v. United States, 903 F.2d 1247, 1251 (9th
Cir. 1990); see also Mariani v. United States, 212
F.3d 761, 766 (3d Cir. 2000) (describing § 441f as “the
conduit contribution ban or ‘anti-conduit’ provision”).
However, while these courts have described § 441f as
pertaining to conduits in passing, they did so while
addressing other aspects of FECA, and have not
actually considered whether § 441f covers indirect
contributions or reimbursements. In Goland, for
example, Goland solicited and reimbursed contribu-
tions, and was charged with violating 2 U.S.C.
8§ 441a and 441f. See Goland, 903 F.2d at 1252. The
first criminal suit against him resulted in a mistrial,
and he was re-indicted under § 441a but not 441f.
See United States v. Goland, 897 F.2d 405, 407-408
(9th Cir. 1990); United States v. Goland, 959 F.2d
1449, 1451-52 (9th Cir. 1992). Judge Fletcher’s com-
ment describing § 441f as prohibiting conduits was in
the context of Goland’s civil suit challenging the
constitutionality of FECA under the First Amend-
ment, and thus Judge Fletcher was not presented the
opportunity to consider whether § 441f prohibited
reimbursements, but rather focused solely on the
constitutionality of the law. Id. Because Judge
Fletcher’s statement, like that in Mariani, was a
passing comment made in the course of considering a
separate issue, rather than a holding made after
analyzing § 441f in the context of reimbursements,
these generalized statements are not persuasive on
the matter at issue here.



30a

The Government also argues that because the defi-
nition of contribution applicable to § 441f includes
“anything of value made by any person for the
purpose of influencing any election for Federal office,”
O’Donnell’s reimbursements to his employees qualify
as “things of value,” and thus as contributions. How-
ever, if the reimbursement itself is the “contribution,”
O’Donnell did not “make a contribution in the name
of another person,” as he reimbursed the employees
in his own name.

The Government notes that the Federal Election
Commission (“FEC”), which provides civil enforce-
ment of FECA, has issued a regulation concerning
§ 441f which states that “examples of contributions in
the name of another include giving money or
anything of value, all or part of which was provided
to the contributor by another person (the true contri-
butor) without disclosing the source of the money or
the thing of value to the recipient candidate or
committee at the time the contribution is made.” 11
C.F.R. § 110.4(b)(2)(i). In addition, an FEC advisory
opinion states that “the Act and Commission regula-
tions prohibit the making and knowing acceptance of
contributions in the name of another, and also prohi-
bit the use of one’s name to effect such a contribution.
2. U.S.C. § 441f; 11 C.F.R. 110.4(b). This includes the
reimbursement or other payment of funds by one
person to another for the purpose of making a contri-
bution.” FEC Advisory Opinion No. 1996-33, 1996
WL 549698. While these statements may reflect the
spirit of FECA, they do not accord with the plain
language of § 441f read in conjunction with the
sections of FECA expressly prohibiting “conduit” and
“indirect” contributions, as well as FECA’s legislative
history. Moreover, because the plain language, struc-
ture, and legislative history of FECA demonstrate

3la

that “indirect” and “conduit” contributions are covered
by other FECA sections but not by § 441f, deference to
the FEC’s interpretation is not warranted. See Gen.
Dynamics Land Sys., 540 U.S.at 600; see also Cér.
for Biological Diversity v. Brennan, 571 F. Supp. 2d
1105 (citing Chevron U.S.A., Inc. v. Natural Res.
Def. Council, 467 U.S. 837, 842 (1984)) (explaining
that “under Chevron, a court defers to an agency’s
reasonable interpretation of a statute, if a statute is
ambiguous, and if, after examining the statute using
the ‘traditional tools of statutory construction, that
ambiguity remains”).

For the foregoing reasons, the Court finds that
O’Donnell’s conduct of reimbursing his employees for
contributions they made does not fall within. the
ambit of § 441f, and thus GRANTS O’Donnell’s
Motion to Dismiss with regards to Counts One and
Two.

B. Count Three Sufficiently States the Essential
Elements of the Crime Charged.

Count Three alleges that O’Donnell “knowingly and
willfully caused the treasurer of EFP . . . to make a
materially false statement” that his employees had
made contributions to EFP “when, in fact, as
O’Donnell well knew, O’Donnell had made those
contributions by providing his money to those indi-
viduals . . . to make those contributions.” (Indictment
8.) O’Donnell alleges that this Count must be
dismissed because: (1) it fails to allege the essential
elements of a violation of 18 U.S.C. § 1001; and
(2) EFP’s statement to the FEC was “indisputably
true.” (Def.’s Mem. P. & A. 8.)



6a
A. The Text of § 441f

[1] Section 441f provides:

No person shall make a contribution in the name
of another person or knowingly permit his name
to be used to effect such a contribution, and no
person shall knowingly accept a contribution made
by one person in the name of another person.

2 U.S.C. § 441f. Under O’Donnell’s interpretation, only
the person who personally transmits the contribution
has actually made it. Therefore, § 441f is violated
only if that person provides a false name. He argues
that his alleged scheme, in contrast, did not violate
§ 441f because the straw donors actually transmitted
the contributions, and they properly used their own
names.

[2] The government agrees that false name contribu-
tions violate § 441f, but it argues that the language is
sufficiently broad to reach straw donor contributions
as well. Under the government’s interpretation, the
original source of funds has made the contribution
even though it was actually transmitted by an inter-
mediary, and if the intermediary is named as the
source, the contribution has been made “in the name
of another.” The intermediary, in turn, having acted

ruled on other grounds by Citizens United v. FEC, 130 S. Ct.
876, 913 (2010); United States v. Serafini, 233 F.3d 758, 763
& n.5 (3d Cir. 2000); United States v. Kanchanalak, 192 F.3d
1037, 1042 (D.C. Cir. 1999); Goland v. United States, 903 F.2d
1247, 1251-54 (9th Cir. 1990); FEC v. Weinstein, 462 F. Supp.
243, 250 (S.D.N.Y. 1978). O’Donnell has not pointed us to a sin-
gle counterexample. These decisions do not control our analysis,
but the sheer consistency of their assumptions at the least
undermines his argument that § 441f should plainly be read
otherwise.

Ta

at the direction and used the funds of the original
source, has not made a contribution, but instead has
“knowingly permit[ted] his name to be used to effect
such a contribution.” There is no dispute that the
contributions here were made in the names of
O’Donnell’s intermediaries. The only question is
whether such attribution violated § 441f because it
was O'Donnell who actually “made” the contributions.

[3] To determine which party in a straw donor
scheme “make[s] a contribution,” we first look to the
statute to understand the meaning of that phrase. A
contribution is statutorily defined as “any gift . . . of
money . . . made by any person for the purpose of
influencing any election for Federal office.” 2 U.S.C.
§ 431(8)(A)G@). The statutory definition clarifies what
purpose is required for the gifts to be covered, and
there is no dispute that the gifts here were made for
the purpose of influencing the presidential primary
election. The statutory definition, however, does not
specifically address the salient question of who made
the contributions. Therefore, we look next to the first
dictionary definition of “contribute,” which is “[tlo give
or supply in common with others; give to a common
fund or for a common purpose.” Am. Heritage Coll.
Dictionary 303 (3d ed. 2000). Applying that definition,
it is clear that O'Donnell gave the money at issue
for the common purpose of advancing the Edwards
campaign.

[4] In ordinary usage, when Friend B delivers a gift
that was provided by Friend A, we say that it was
Friend A who gave that gift. In the context of gifts,
the word “giving” connotes the idea of providing from
one’s own resources rather than simply conveying,
and thus we refer to the original source rather than
the intermediary as the one who gave. Section 441f


iv
TABLE OF CONTENTS—Continued

II. The Court of Appeals’ Expansive Non-
Textual Interpretation of Section 441f
is Contrary to Due Process and First
Amendment Principles ...0........ccccsseseeeeee

A. The FECA Regulates First Amend-
ment Activities and Consequently
Must be Interpreted so as to Avoid
Chilling Protected Speech .............06

B. Due Process Principles and the Rule
of Lenity Require that Criminal
Statutes be Interpreted Narrowly
and Ambiguities be Resolved in
Favor of the Defendant ............ccseee

CONCLUSION .......cscsssesssssessesseseessscsnessesanseeessense
APPENDIX

APPENDIX A: Opinion of the United States
Court of Appeals for the Ninth Circuit........

APPENDIX B: Order of the Court of
Appeals Denying Panel Rehearing and
Rehearing En Banc .........cccssecssscesesssssenesesees

APPENDIX C: Order of the Court of
Appeals Granting Petitioner’s Motion to
Stay the Mandate 0... eeseeseseseeeeeeeeeees

APPENDIX D: Order of the United States
District Court for the Central District of
California Granting in Part and Denying
in Part Defendant’s Motion to Dismiss
Indictment

Page

24

24

27
31

la

20a

21a

22a

v
TABLE OF CONTENTS—Continued
Page

APPENDIX E: Indictment in the United
States District Court for the Central
District of California ............scscceeseseeeeeeneees 37a



44a

O’DONNELL well knew, defendant O'DONNELL had
made those contributions by providing his money to
those individuals, including B.R., H.E., and E.L., to
make those contributions.

A TRUE BILL

/s/
Foreperson

THOMAS P. O’BRIEN
United States Attorney

{Megible!
Mlegible!

CHRISTINE C. EWELL

Assistant United States Attorney
Chief, Criminal Division

JOSEPH O. JOHNS

Assistant United States Attorney
Chief, Environmental Crimes Section

DENNIS MITCHELL
Assistant United States
Attorney Environmental Crimes Section



40a

defendant PIERCE O'DONNELL (“O’DONNELL’),
unindicted co-conspirator D.V., and others known
and unknown to the Grand Jury, knowingly and
willfully conspired and agreed to make conduit con-
tributions that aggregated more than $10,000 within
a calendar year, that is, contributions in the names of
others, in violation of 2 U.S.C. 8§ 437g(d) and 441f.

B. MEANS BY WHICH THE OBJECT _OF THE
CONSPIRACY WAS TO BE ACCOMPLISHED

1. Defendant O'DONNELL would solicit individu-
als to make contributions to EFP, and would inform
such individuals that he would reimburse their
contributions.

2. Defendant O'DONNELL would instruct and cause
unindicted co-conspirator D.V. to solicit employees of
his law firm and other individuals to make contribu-
tions to EFP that he would reimburse.

3. Defendant O'DONNELL and unindicted co-
conspirator D.V. would inform prospective conduit
contributors that they would be reimbursed for their
contributions to EFP.

4. Defendant O'DONNELL and unindicted co-
conspirator D.V. would collect and receive contribu-
tions to EFP from the individuals who they solicited
(hereafter the “conduit contributors”) and cause their
contributions to be received by EFP.

5. Unindicted co-conspirator D.V. would write out

and defendant O'DONNELL would sign bank checks
drawn on the account of defendant O'DONNELL

reimbursing the conduit contributors for their contri-
butions to EFP.

6. Unindicted co-conspirator D.V. would deliver
bank checks drawn on defendant O’DONNELL’S
account and signed by defendant O'DONNELL in

4la

order to reimburse the conduit contributo: i
contributions to EFP. tors for thelr

C. OVERT ACTS

From on or about March 1, 2003 thro
about April 21, 2008, in furtherance of the panned
and to accomplish the object of the conspiracy,
defendant O'DONNELL, unindicted co-conspirator
D.V., and others known and unknown to the Grand
Jury, committed and caused to be committed various
overt acts in Los Angeles County and elsewhere,
within the Central District of California, including,
but not limited to, the following: ; °

1. Unindicted co-conspirator D.V. solici
make a contribution to EFP. * oleited M.S. to

2. Unindicted co-conspirator D.V. solici
make a contribution to EFP. * solieited HLS. to

3. Defendant O'DONNELL and unindi

) icted co-
conspirator D.V. caused H.E. to

contribution to EFP. make a $2,000

4. Defendant O'DONNELL and unindicted

co-conspirator D.V. caused B.R. to
contribution to EFP. make a $2,000

5. Defendant O’7DONNELL and unindi

e inindicted
co-conspirator D.V. caused E.L. to
contribution to EFP. make a $2,000

6. Defendant O'DONNELL caused M.
$2,000 contribution to EFP. ‘0. to make a

7. Defendant O’DONNELL caused H.W.
$2,000 contribution to EFP. W fo make a

8. Unindicted co-conspirator D.V. wrote out a bank
check bearing number 2444 in the amount of $8,000

drawn on defendant O’DONNELL’S bank account in
order to reimburse conduit contributions to EFP.



16

But were it appropriate to consult other sources for
statutory interpretation, they only reinforce the
conclusion that Section 441a(a)(8), not Section 441f,
governs the conduct alleged in the Indictment.”

B. Well-Established Principles of Sta-
tutory Construction Further Compel
the Conclusion that Section 441a(a)(8),
not Section 441f, Governs “Conduit”
Contributions.

In its effort to justify ignoring the plain statutory
language, the court of appeals disregarded two well-
established rules of statutory construction: the rule
that different language in different provisions of the
same statute is presumed to have different meanings,
and the rule against interpreting a statute in a

18 While the government’s motive in making its charging deci-
sion is not determinative of the issue in the case, it is relevant to
note that the government charged a felony, which applies under
Section 441f as long as the amount involved exceeds $10,000 (as
charged in the Indictment), but which would not apply under
Section 441a(a)(8) unless the amount involved exceeds $25,000
(although the Indictment in fact describes $26,000 in “conduit
contributions,” Count II only alleges contributions in excess of
$10,000, and a failure of proof on any one of the thirteen alleged
conduit contributions would cause the government to fail to
prove a felony under Section 441a(a)(8), perhaps further ex-
plaining the charging decision). App. 42a-43a.

Similarly, the government’s assertion that it would make no
sense to limit Section 441f to cases where an individual makes a
contribution using a false name is simply incorrect: It does more
harm to the transparency of the campaign finance reporting
system if an individual uses a false name, which might well
never be detected, than if an individual reimburses a contribu-
tion, where the party receiving the reimbursement has a
statutory obligation to report that fact, see 2 U.S.C. § 441a(aX8),
thereby providing a clear means for identification and disclosure
of the source of “conduit” contributions.

17

manner that renders portions of it superfluous. Sec-
tion 441a(a\(8) contains a definition of “contribution,”
expressly limited to that section, that encompasses
“conduit” contributions. By, in effect, applying that
definition to Section 441f—where a different statu-
tory definition applies—the court of appeals both
ignored the material differences in statutory lan-
guage between those two sections and rendered the
additional language in Section 441a(a)(8) superfluous
by concluding that it was already encompassed
within the general statutory term “contribution.”

Courts must account for a statute “in all its parts,”
including the impact of an interpretation on related
provisions of the same statute. Lexecon Inc. v. Milberg
Weiss Bershad Hynes & Lerach, 523 US. 26, 36
(1998). In particular, this Court has explained that
“fi]t is well settled that ‘[w]here Congress includes
particular language in one section of a statute but
omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”
Duncan v. Walker, 533 U.S. 167, 173 (2001) (citing
Bates v. United States, 522 U.S. 28, 29-30 (1997)
(quoting Russello v. United States, 464 U.S. 16, 23
(1983))) (internal quotation marks omitted). This
Court has also repeatedly made clear that courts
should wherever possible interpret statutory provi-
sions so that “no clause, sentence, or word shall
be superfluous, void, or insignificant.” TRW Inc.
v. Andrews, 534 U.S. 19, 31 (2001) (citation and
internal quotation marks omitted). The court of
appeals’ construction of Sections 441f and 441a(a)(8)
not only is inconsistent with these cardinal prin-
ciples, but examination of the two relevant statutory
provisions compels the conclusion that the district
court reached: Section 441a(a)(8) reaches the reim-


20

The court of appeals also opined that the text of
Section 441a(a)(8) did not preclude “contribution,” as
used in Section 441f, from encompassing indirect or
conduit contributions because “Congress enacted
§ 441f and § 441a(a)(8) at different times,” App. 11a,
and “the language used in § 441f is broad rather than
specific.” App. 12a. But the court of appeals must
“presume that [the] legislature says in a statute
what it means and means in a statute what it says
there.” Dodd, 545 U.S. at 357 (quoting Connecticut
Nat Bank v. Germain, 503 U.S. 249, 253-54 (1992))
(alteration original). Moreover, even though Congress
initially enacted Section 441a(a)(8) after Section 441f,
it re-enacted Section 441f when Section 441a(a)(8)
was initially enacted and subsequently re-enacted
both provisions simultaneously. See Federal Election
Campaign Act Amendments of 1974, Pub. L. No. 93-
443, § 101, 88 Stat. 1263, 1263-68 (1974); Federal
Election Campaign Act Amendments of 1976, Pub. L.
No. 94-283, § 112, 90 Stat. 475, 486-96 (1976). Thus,
the presumption should apply with full force as it
does with simultaneously-enacted provisions. See
Bilski v. Kappos, 561 U.S. _, _, 130 S. Ct. 3218,
3228-29 (2010) (discussing the “canon against inter-
preting any statutory provision in a manner that

“contribution in the name of another” as the court of appeals
held, then it is absolutely prohibited by Section 441f, which con-
tains no exceptions. But Section 441a(a)(8) clearly permits some
conduit contributions. So long as the original source reporting
requirements and individual contributions limits are observed,
hypothetically an individual could solicit and advance or reim-
burse ten individuals each who give $100 to a campaign and
that conduct would be lawful pursuant to Section 441a(a)(8).
The court of appeals’ decision is silent as to how “conduit” con-
tributions can be simultaneously prohibited by Section 441f and
permitted and regulated under Section 441a(a)(8).

21

would render another provision superfluous” and
stating “[t]his principle, of course, applies to
interpreting any two provisions in the U.S. Code,
even when Congress enacted the provisions at
different times”) (citations omitted).

Section 441a(a)(8) demonstrates that Congress was
capable of drafting (and did draft) language covering
the conduct alleged to have been Petitioner’s in this
case: namely, exceeding the individual contribution
limits through “indirect” contributions by reimburs-
ing “conduit” contributors. Under Section 441a(a)(8),
any such reimbursed contributions are aggregated as
part of the “original source’s” total contributions and,
if that total exceeds the amount permitted by Section
441a(a)(1), the conduct would violate FECA.

Despite the clear difference in language between
the Sections, the court of appeals effectively applied
the specialized definition of “contribution” in Section
441a(a)(8), a definition explicitly limited to “the
limitations imposed by this section” (Section 441a), to
Section 441f. Such judicial amendment of the statute
is plainly impermissible. See Pavelic & LeFlore v.
Marvel Entm’t Group, 493 U.S. 120, 126 (1989)
(A court’s “task is to apply the text, not to improve
upon it.”).7_ An interpretation which ignores these

7 As noted above, FECA defines “contribution” as “any gift,
subscription, loan, advance, or deposit of money or anything of
value made by any person for the purpose of influencing any
election for Federal office.” 2 U.S.C. § 431(8(A)(i). Notably, this
definition of “contribution” in FECA, which applies to Section
441f, does not include “direct or indirect” contributions, and the
court of appeals’ interpretation improperly expands upon the
definition adopted by Congress. See Jama v. Immigration and
Customs Enforcement, 543 U.S. 335, 341 (2005) (“We do not
lightly assume that Congress has omitted from its adopted text
requirements that it nonetheless intends to apply, and our



TABLE OF CONTENTS

QUESTION PRESENTED...
TABLE OF AUTHORITIES
PETITION FOR A WRIT OF CERTIORARI......
OPINIONS BELOW.
JURISDICTION

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ........::ssecsesseeeseeeseeees

STATEMENT OF THE CASE .........::-::ssesseeseeee
REASONS FOR GRANTING THE PETITION..

I. The Court of Appeals’ Ruling is Unsup-
ported by the Plain Text of Sections 441f
and 441a(a)(8) and is Contrary to Esta-
blished Rules of Statutory Construction..

A. The Express Language of Section
441f Does Not Encompass the
“Conduit” Contributions Alleged in
the Indictment .........csseeeenereeereeee

B. Well-Established Principles of Sta-
tutory Construction Further Compel
the Conclusion that Section 441a(a)(8),
not Section 441f, Governs “Conduit”
Contributions .

1. According Differing Language in
Different Provisions of the Same
Statute Differing Meanings...........

2. Avoiding Interpretations Render-
ing Portions of a Statute Super-
AUOUS 0. eeesesestseseseeseseseeseneneeeneeee

Page

Me

nee f.

i

©

12

12

16

18

22


26a

explicit language, as it did in other sections of the
same statute. See Barnhart v. Sigmon Coal Co., 534
U.S. at 452. Moreover, if § 441f covered “conduit” and
“indirect” contributions, there would be no need
for Congress to have explicitly included those terms
in other sections of FECA. As the Court should,
whenever possible, interpret a statute so as not to
render any of its terms superfluous, the better read-
ing of § 441f is that it does not cover such contribu-
tions. See TRW Inc., 534 U.S. at 31. Lastly, if § 441f
covered indirect contributions made through a
conduit, that would mean such contributions were
never allowed. However, § 441a allows for indirect
and conduit contributions, as long as they do not
exceed designated limits. See § 441a. Thus, reading
§ 441f to prohibit such contributions is irreconcilable
with § 441a’s express authorization of them.

Indeed, the Government acknowledged the tension
between § 441a and § 441f at oral argument, stating:
“I do see the ambiguity that the Court’s pointing to is
that in one sense [FECA is] saying you have to report
[an indirect contribution]. If you have to report it,
then why is it something that 441(f) prohibits?” (June
2, 2009 Tr. 22:1-4.) The Government also stated that
“I think if you disclosed [an indirect contribution] you
might not run into trouble, because, again, there’s no
penalty—I mean there’s no criminal sanction—for
441(f) until you reach over two thousand dollars. . . .”
After the hearing, the Government filed a Supple-
ment to Opposition in which it states that “[iJf a
person makes a conduit contribution he has violated
§ 441f, regardless of the amount of the conduit con-
tribution.” (PL.’s Supp. Opp’n 2.) In the Supplement,
the Government analogizes the relationship between
§ 441a and § 441f to that between the tax code and
Title 21. It notes that the tax code requires a drug

27a

dealer to report income earned from selling cocaine,
but that such sales are illegal under Title 21, and
reasons that, similarly, § 441a requires one to report
conduit contributions, while §441f makes them
illegal. Id. However, unlike the cocaine reporting
requirements in the tax code and the separate crimi-
nalizing statute, the provisions regarding conduit
contributions are found in different sections of the
same statute. Because a statute must be construed as
a whole, the Court must read § 441a and § 441f in a
way that makes them consistent with one another,
and with the rest of FECA. As explained above, the
Government’s proposed interpretation does not do
this. Accordingly, analyzing the plain language of
§ 441f in the context of FECA as a whole, § 441f is
unambiguous and does not prohibit soliciting and
reimbursing contributions.

2. Even If § 441fs Plain Language Were
Ambiguous, FECA’s Legislative History
and the Rule of Lenity Establish That
§441f Does Not Prohibit O’Donnell’s

Conduct.

a. FECA’s Legislative History

Even if the language of § 441f were ambiguous, the
legislative history of FECA suggests that Congress
did not intend § 441f to cover indirect contributions.
After § 441f was introduced, Senator Scott stated
that a “loophole” existed in the campaign contribu-
tion laws because a “man of influence” could evade
contribution limits by giving his friends money and
having them contribute an equal amount to his
campaign. 117 Cong. Rec. 29,295 (1971). If § 441f
prohibited using one’s friends as conduits for contri-
butions, there would be no “loophole” to fill. In addi-
tion, § 441b’s predecessor, 18 U.S.C. § 610, prohibited



2a
COUNSEL

George S. Cardona, Acting United States Attorney,
Christine C. Ewell, Assistant United States Attorney,
and Erik M. Silber (argued), Assistant United States
Attorney, Los Angeles, California, for the plaintiff-
appellant.

George J. Terwilliger III (argued), Daniel B. Levin,
Darryl S. Lew and Michael H. Huneke, White & Case
LLP, Washington, D.C., for the defendant-appellee.

Thomasenia P. Duncan, David Kolker, Kevin Deeley,
Erin Chlopak and Steve Hajjar, Federal Election
Commission, Washington, D.C., for amicus curiae
Federal Election Commission.
Peter Ferrara, American Civil Rights Union, McLean,
Virginia, for amicus curiae American Civil Rights
Union.
J. Gerald Hebert, Paul S. Ryan and Tara Malloy,
Campaign Legal Center, Washington, D.C.; Donald J.
Simon, Sonosky, Chambers, Sachse, Endreson & Perry,
LLP, Washington, D.C.; Fred Wertheimer, Democracy
21, Washington, D.C., for amici curiae Campaign
Legal Center and Democracy 21.
Melanie Sloan, Citizens for Responsibility and Ethics
in Washington, Washington, D.C., for amicus curiae
Citizens for Responsibility and Ethics in Washington.
OPINION
FISHER, Circuit Judge:

Federal campaign finance law says that “[nJo person
shall make a contribution in the name of another
person.” 2US.C. § 441f. We hold that this law prohi-
bits a person from providing money to others to
donate to a candidate for federal office in their own
names, when in reality they are merely “straw donors.”

3a
BACKGROUND

Defendant Pierce O'Donnell is alleged to have con-
tributed $26,000 of his money in 2003 to the Edwards
for President campaign through 13 individuals —
primarily employees of his law firm as well as some
of his relatives. According to the indictment,
O”Donnell arranged for these individuals to donate
$2,000 ostensibly in their own names put with the
understanding that he would either advance them
funds or reimburse them after the donation was
made. In accord with these allegations, the grand
jury charged O’Donnell with, inter alia, contributing
in the names of others in violation of 2 U.S.C. § 441f.
The district court dismissed the § 441f counts, and
the government appeals. See 18 U.S.C. § 3731. We
reverse.

Congress first enacted § 441f as part of the Federal
Election Campaign Act of 1971, Pub. L. No. 92-225,
86 Stat. 3 (1972), which was designed to regulate
campaign finance by requiring the disclosure of con-
tributions and their sources. In its present form,
§ 441f states: “No person shall make a contribution in
the name of another person or knowingly permit his
name to be used to effect such a contribution, and no
person shall knowingly accept a contribution made by
one person in the name of another person.” 2 U.S.C.
§ 441f (emphasis added); see also 11 C-F.R. § 110.4(b)(2)
(applicable regulations).

In 1974, Congress also enacted a new provision, :

§ 441a(a\(8), relating to the reinstatement of con-
tribution limits. See Federal Election Campaign Act
Amendments of 1974, Pub. L. No. 93-443, 88 Stat.
1263 (1974). Section 441a(a)(8) states:



QUESTION PRESENTED

Whether the conduct alleged in the Indictment
dismissed by the district court—agreeing to reim-
burse and reimbursing campaign contributions made
by contributors using their true names—violates a
provision of the Federal Election Campaign Act
(2 U.S.C. § 4416), which provides that “[nlo person
shall make a contribution in the name of another
person,” where:

(a)

(b)

(©)

the text of Section 441f makes no reference to
indirect, “strawman,” conduit, or intermedia-
ries’ contributions;

2 U.S.C. § 441a(a\(8) expressly permits and
regulates contributions “made by a person,
either directly or indirectly” and contributions
“in any way earmarked or otherwise directed
through an intermediary or conduit”; and

the Ninth Circuit Court of Appeals’ non-
textual interpretation of a plainly-worded
criminal prohibition regarding otherwise pro-
tected speech contravenes well-established
First Amendment and due process principles,
including the rule of lenity?



18a

In any event, O’Donnell has at most shown that a 3
narrower interpretation of § 441f is conceivable, but 3
that is insufficient to establish ambiguity. See Smith %
v. United States, 508 U.S. 223, 239 (1993) (“The mere 3
possibility of articulating a narrower construction . .
does not by itself make the rule of lenity applicable.”);
Otherson, 637 F.2d at 1285 (“[D]isputed words or
phrases in criminal laws have in many instances been
interpreted broadly, defeating defendants’ claims.”
(citing Huddleston, 415 U.S. 814; United States v.
Cook, 384 U.S. 257 (1966))). Thus, the rule of lenity
does not apply.

I.

[10] Separately, O’Donnell argues that even if § 441f
applies to straw donor contributions, the indictment
against him is defective. “An indictment must be
specific in its charges and necessary allegations cannot
be left to inference . . . .” Williams v. United States,
265 F.2d 214, 218 (9th Cir. 1959). Moreover, “an
indictment must do more than simply repeat the
language of the criminal statute.” Russell v. United
States, 369 U.S. 749, 764 (1962). At the same time, an
“indictment should be read in its entirety, construed
according to common sense, and interpreted to include
facts which are necessarily implied.” United States v.
Givens, 767 F.2d 574, 584 (9th Cir. 1985). We review
the sufficiency of an indictment de novo. United States
v. Rodriguez, 360 F.3d 949, 958 (9th Cir. 2004).

{11] O'Donnell argues that the indictment is inade-
quate because it charges him with reimbursing
contributions made by others rather than with
making contributions himself. By characterizing the
indictment in this manner, he seeks to illustrate a
“variance between the charged conduct and the charged
statute.” It is true that the indictment includes

19a

allegations that O'Donnell reimbursed the contribu-
tions of others, which alone might not clearly state a
legal violation. But the indictment also alleges that
he “agreed to make conduit contributions . . . , that
is, contributions in the names of others.” Taken
together, these allegations reasonably describe
reimbursements as the particular method used to
violate the ban on contributing in the names of
others. The indictment is not defective.

CONCLUSION

We hold that § 441f prohibits straw donor contribu-
tions, in which a defendant solicits others to donate
to a candidate for federal office in their own names
and furnishes the money for the gift either through
an advance or a prearranged reimbursement. We fur-
ther hold that the indictment against O’Donnell is
sufficient. Accordingly, the district court’s order dis-
missing counts one and two of the indictment is
reversed, and the case is remanded.

REVERSED and REMANDED.



36a
O'Donnell cites no authority holding otherwise.
Accordingly, the EFP treasurer’s statements were not
“indisputably true,” and the Court will not dismiss
the Indictment on this ground.

Ill. RULING

For the foregoing reasons, the Court GRANTS IN
PART and DENIES IN PART Defendant’s Motion to
Dismiss the Indictment. Counts One and Two are
hereby DISMISSED.

IT IS SO ORDERED.
Dated: June 8, 2009

/s/ S. JAMES OTERO
S. JAMES OTERO
UNITED STATES DISTRICT JUDGE

37a
APPENDIX E
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
June 2007 Grand Jury
[Filed 07/24/08]

CR08-00872

UNITED STATES OF AMERICA,
Plaintiff,

v.

PIERCE O’DONNELL,
Defendant.

INDICTMENT
[18 U.S.C. § 371: Conspiracy; 2 U.S.C. §§ 437g(d),
441f: Illegal Campaign Contributions; 18 U.S.C.
§ 1001: False Statement; 18 U.S.C. § 2(b):
Causing an Act to be done]

The Grand Jury charges:
GENERAL ALLEGATIONS
At all times relevant to this Indictment:
A. Federal Election Laws
1. The Federal Election Campaign Act (“FECA”)

"governed candidates for Federal office and the politi-

cal committees that received contributions on their
behalf.


8a

must be understood on this same common sense
level. In a straw donor situation, the person who
actually transmits the money acts merely as a
mechanism, whereas it is the original source who has
made the gift by arranging for his money to finance
the donation. To identify the individual who has
made the contribution, we must look past the inter-
mediary’s essentially ministerial role to the sub-
stance of the transaction. Accordingly, the statutory
language applies when a defendant’s funds go to a
campaign either directly from him or through an
intermediary. In either case, for purposes of § 441f,
the defendant has made that contribution — and he
has violated the statute if his own name was not
provided as the source.”

O'Donnell argues that this interpretation illogically
would result in criminalizing conduct when the
intermediary is later reimbursed rather than at the
time the money is delivered to the candidate’s cam-
paign. The concern, in other words, is that the defen-
dant does not actually become the source — and thus
no offense takes place — until the defendant reim-
burses the intermediary, after the donation (with its
attendant reporting obligation) has already been
made. Consequently, a contribution that was lawful
at the time it was made would become unlawful
based on subsequent events — a temporal sequence

2? We need not decide whether and under what circumstances
the intermediary should also be understood to have made a con-
tribution, such that the intermediary’s name must jointly be
reported. We note, however, the Federal Election Commission
regulation stating that when an intermediary exercises direc-
tion or control over a gift, the entire amount must be attributed
to both the original source and the intermediary. See 11 C.F.R.
§ 110.6(d).

9a

that seems anomalous should the language of § 441f
be read as not concerned with anything that happens
after the contribution is made.

We note preliminarily that this argument does not
apply to the extent that O’Donnell was alleged to
have advanced funds. When the funds are advanced
rather than reimbursed, there is no timing anomaly:
O'Donnell made the contributions at the moment
they were transmitted to the campaign because he
would already have supplied the necessary funds.
With regard to reimbursed gifts, we acknowledge
that the timing objection would be troubling (perhaps
even decisive) when, for example, a defendant reim-
burses the contributions made by others without any
prior arrangements or understandings. We therefore
express no view on whether § 441f would apply to
that hypothetical defendant. In the present circums-
tances, however, we reject O’Donnell’s view that the
contribution would not have been unlawful at the
time it was made. When a defendant arranges to
have an intermediary deliver a gift and promises
reimbursement, the offense will at least have begun
at the moment the contribution arrives at the cam-
paign. Because the indictment alleges that O’Donnell
then actually followed through with the reimburse-
ments, we need not decide whether a subsequent
failure to actually reimburse the intermediary would
negate the offense. Our holding is limited to defendants
who, as O’Donnell is alleged to have done, both
prearrange for and follow through with the reim-

bursement of their intermediaries.’

3 O'Donnell’s timing argument fails for an additional reason
based on § 441a(a)(8), which we discuss in section I.B infra.



12

ments criminalizing conduct within the sphere of
protected First Amendment activity.

I. The Court of Appeals’ Ruling is Unsup-
ported by the Plain Text of Sections 441f
and 441a(a)(8) and is Contrary to Esta-
blished Rules of Statutory Construction.

A. The Express Language of Section 441f
Does Not Encompass the “Conduit”
Contributions Alleged in the Indict-
ment.

According to the Indictment, at the time the
alleged “contributions” in question were made, the
only financial transactions that had taken place were
by persons other than Petitioner providing money to
EFP using their own names." The Indictment does
not allege that the individuals who submitted the

1 Thus, the act of “making the contribution,” an essential ele-
ment of the offenses charged, was complete before the Petitioner
is alleged to have done anything with his own funds. Imple-
menting regulations promulgated by the Federal Election
Commission make clear that a contribution is “made” when the
donor “relinquishes control over the contribution.” 11 C.F.R.
§ 110.1(b)(6). Petitioner’s alleged promise to reimburse the con-
tributions made is clearly not within the relevant statutory
definition of a “contribution.” The definition of “contribution”
provided in the FECA at the time of events alleged in the
Indictment did not include “promise[s],” a material exclusion
because earlier versions of FECA did define “contributions” to
include “promise[s].” Compare Federal Election Campaign Act
of 1971, Pub. L. No. 92-225, § 301(e)(2), 86 Stat. 3, 12 (1972)
(defining “contribution” to include “a contract, promise, or
agreement, whether or not legally enforceable, to make a contri-
bution for any such purpose”), with 2 U.S.C. § 431(8)(A), supra
note 7 (definition of “contribution,” as amended by Acts subsequent
to the original enactment of FECA, which no longer includes
“promise[s]”).

13

contributions to EFP did so using anything other
than their own names.”

In pertinent part, Section 441f states: “No person
shall make a contribution in the name of another
person or knowingly permit his name to be used to
effect such a contribution ....” The text of Section
441f does not address reimbursement of “conduit
contributions,” “straw donors,” or the conduct of any
intermediaries in a chain of events involving a
contribution by a person using their true name.
Rather, the text prohibits only an individual. from
making a contribution in other than his or her
own name. Likewise, the statutory definition of a
“contribution” applicable to Section 441f nowhere
includes direct or indirect or conduit contributions.”

12 'To the extent that the government’s allegation is that Peti-
tioner’s reimbursement provided to those third parties was the
“contribution,” this after-the-fact theory results in a fatally
defective indictment where the facts alleged are at variance
with the elements of the offense charged. In order to be valid,
“faln indictment must set forth each element of the crime that it
charges,” Almendarez-Torres v. United States, 523 U.S. 224, 228
(1998) (citation omitted), and “be accompanied with such a
statement of the facts and circumstances as will inform the
accused of the specific offense, coming under the general
description, with which he is charged.” Russell v. United States,
369 U.S. 749, 765 (1962) (citation and internal quotation marks
omitted). Moreover, the Indictment alleges that the reim-
bursements in question were made using Petitioner's own name
(reimbursement checks drawn on his account). App. 40a-42a.
Thus, the “contribution” Petitioner is alleged to have made after
the fact of the contributions identified were made in his true
name.

18 See supra note 7 (quoting the definition of “contribution”
provided in 2 U.S.C. § 431(8)(A)).


18

bursements alleged in the Indictment, while Section
441f does not.

1. According Differing Language in Different
Provisions of the Same Statute Differing
Meanings

Section 441a(a)(8) states:

For purposes of the limitations imposed by
this section, all contributions made by a person,
either directly or indirectly, on behalf of a
particular candidate, including contributions
which are in any way earmarked or otherwise
directed through an intermediary or conduit to
such candidate, shall be treated as contributions
from such person to such candidate. The
intermediary or conduit shall report the original
source and the intended recipient of such con-
tribution to the Commission and to the intended
recipient.

2 U.S.C. § 441a(a)(8) (emphasis added). This FECA
provision unmistakably permits conduit contribu-
tions, but regulates them by requiring the person
tendering the funds to a covered campaign committee
to identify the original source of any funds not the
contributor’s own. Another part of the statute limits
the total amount of funds any one individual can con-
tribute to one candidate. See 2 U.S.C. § 441a(a)(1).

Thus, these provisions and Section 441f can be read
harmoniously with FECA’s fundamental purpose as
identified by the court of appeals (and numerous
amicus filings below): transparency in the identifica-
tion of those making campaign contributions and
limits on the expenditures of any individual for that
purpose. See App. 14a-16a. Section 441a(a)(8) allows
persons to solicit, bundle, and tender the campaign

19

contributions of others but requires the original source
to be named; Section 441a(a)(1) sets contributions
limits for any individual. Section 441f outright
proscribes making a contribution in the name of
another (by, for example, an individual making a
series of contributions with a list of fictitious names
plucked out of a telephone directory). Each section of
the statute serves a common objective—ensuring
accurate disclosure of the identity of contributors—
and violation of each carries sanctions for wrongdoers.

The court of appeals’ analysis, however, of the
interplay between Section 441f and the other rele-
vant FECA provisions not only reaches far beyond
the textual limits of Section 441f, it also ignores the
impact and import of the other relevant sections.
In stark contravention to well-established principles
of statutory construction, the court of appeals found
that the text of Section 441f “unambiguously” en-
compasses “straw donor contributions.” App. 5a. It
found that the absence of “directly or indirectly” and
any reference to contributions “directed through an
intermediary or conduit” in Section 441f did not
indicate an intent to exclude application of those
words in Section 441f, despite Congress’ express
inclusion of those words in Section 441a(a)(8) and
omission of them in Section 441f. App. 12a.

That ruling was erroneous because this Court has
repeatedly instructed courts to “generally presumel]
that Congress acts intentionally and purposely in the
disparate inclusion and exclusion” of language in

. statutes. Duncan, 5383 U.S. at 173 (citations and

internal quotation marks omitted).”®

16 A simple hypothetical illustrates why this rule maintains
force in the context of this case: if a “conduit” contribution is a