No. 09-50296

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

PIERCE O’DONNELL,

Defendant-Appellee.

 

GOVERNMENT’S REPLY BRIEF

APPEAL FROM

THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

 

GEORGE S. CARDONA

Acting United States Attorney

CHRISTINE C. EWELL

Assistant United States Attorney

Chief, Criminal Division

ERIK M. SILBER

Assistant United States Attorney

Criminal Appeals Section

 1200 United States Courthouse

 312 North Spring Street

 Los Angeles, California 90012

 Telephone: (213) 894-2231

 Facsimile: (213) 894-8513

 E-mail: Erik.Silber@usdoj.gov

Attorneys for Plaintiff-Appellant

UNITED STATES OF AMERICA

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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . ii

I INTRODUCTION........................1

II ARGUMENT..........................3

A. SECTION 441f’s PLAIN WORDING APPLIES HERE.. .....3

1. Defendant Violated Section 441f’s

Straightforward Textual Prohibition. ......3

a. Defendant made “contributions” in

the “name of another person”. .......3

b. Defendant asks this Court to read a

nontextual limit into Section 441f. ....6

2. Statutory Context Does Not Support Reading

a Nontextual Limit into Section 441f.. .....8

3. Section 441a(a)(8) Does Not Control and

Prohibit Contributions in the Names of

Conduits.. . . . . . . . . . . . . . . . . . . 11

B. PRECEDENT SUPPORTS SECTION 441f’s PLAIN WORDING.. . 17

C. WERE THERE AMBIGUITY, DEFERENCE TO THE FEC IS

REQUIRED. . . . . . . . . . . . . . . . . . . . . . 22

1. Constitutional-Avoidance Principles Do Not

Apply. . . . . . . . . . . . . . . . . . . . . 22

2. Deference, Not Lenity, Controls. . . . . . . . 23

D. DEFENDANT IMPERMISSIBLY CHALLENGES THE

INDICTMENT’S ALLEGATIONS. . . . . . . . . . . . . . 27

III CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . 30

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TABLE OF AUTHORITIES

PAGE(s)

CASES

Agredano v. Mutual of Omaha Co.,

75 F.3d 541 (9th Cir. 1996). . . . . . . . . . . . . . . 10

Ali v. Federal Bureau of Prisons,

552 U.S. 214 (2008). . . . . . . . . . . . . . . . . . . 11

Almendarez-Torres v. United States,

523 U.S. 224 (1998)....................3

Amador-Palomares v. Ashcroft,

382 F.3d 864 (8th Cir. 2004).. . . . . . . . . . . . . . 25

Babbitt v. Sweet Home Chapter,

515 U.S. 687 (1995). ................ passim

Bartnicki v. Vopper,

532 U.S. 514 (2001). . . . . . . . . . . . . . . . . . . 14

Buckley v. Valeo,

424 U.S. 1 (1976) (per curiam).. . . . . . . . . . . . . 18

California Med. Ass’n v. FEC,

453 U.S. 182 (1981)....................5

Castaneda v. United States,

546 F.3d 682 (9th Cir. 2008),

cert. granted, 130 S. Ct. 49 (2009). . . . . . . . . . . 13

Chevron U.S.A., Inc. v. Natural Res. Def. Council,

467 U.S. 837 (1984). .............. 22, 23, 25

Crandon v. United States,

494 U.S. 152 (1990). . . . . . . . . . . . . . . . . . . 26

DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr.

Trades Council,

485 U.S. 568 (1988). . . . . . . . . . . . . . . . . . . 22

Dolfi v. Pontesso,

156 F.3d 696 (6th Cir. 1998).. . . . . . . . . . . . . . 25

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TABLE OF AUTHORITIES (continued)

PAGE(s)

CASES

FEC v. Democratic Senatorial Campaign Comm.,

454 U.S. 27 (1981).. . . . . . . . . . . . . . . . . . . 26

FEC v. Williams,

CV 93-6321-ER (C.D. Cal. Jan. 31, 1995),

rev’d on other grounds,

104 F.3d 237 (9th Cir. 1996).. . . . . . . . . . . . . . 17

Gutierrez v. Ada,

528 U.S. 250 (2000). . . . . . . . . . . . . . . . . . 9, 11

Irons v. Carey,

505 F.3d 846 (9th Cir. 2007).. . . . . . . . . . . . . . 24

Koons Buick Pontiac GMC, Inc. v. Nigh,

543 U.S. 50 (2004).. . . . . . . . . . . . . . . . . . 2, 17

Lamie v. United States Trustee,

540 U.S. 526 (2004). . . . . . . . . . . . . . . . . . . 11

Laub v. United States Dep’t of Interior,

342 F.3d 1080 (9th Cir. 2003). . . . . . . . . . . . . . 19

Leocal v. Ashcroft,

543 U.S. 1 (2004). . . . . . . . . . . . . . . . . . . . 27

Mariani v. United States,

80 F. Supp. 2d 352 (M.D. Pa. 1999).. . . . . . . . . . . 14

Mariani v. United States,

212 F.3d 761 (3d Cir. 2000) (en banc). . . . . . . . . . 13

McConnell v. FEC,

540 U.S. 93 (2003).. .............. 18, 19, 21

Mizrahi v. Gonzales,

492 F.3d 156 (2d Cir. 2007). . . . . . . . . . . . . . . 25

Morales-Izquierdo v. Gonzales,

486 F.3d 484 (9th Cir. 2007) (en banc).. ...... 22, 24

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TABLE OF AUTHORITIES (continued)

PAGE(s)

CASES

Mujahid v. Daniels,

413 F.3d 991 (9th Cir. 2005).. ......... 23, 24, 25

O’Donald v. Johns,

402 F.3d 172 (3d Cir. 2005). . . . . . . . . . . . . . . 25

Pacheco-Camacho v. Hood,

272 F.3d 1266 (9th Cir. 2001). ........... 23, 24

Perez-Olivo v. Chavez,

394 F.3d 45 (1st Cir. 2005). . . . . . . . . . . . . . . 25

Royal Foods Co., Inc. v. RJR Holdings, Inc.,

252 F.3d 1102 (9th Cir. 2001). . . . . . . . . . . . . 7, 8

Russello v. United States,

464 U.S. 16 (1983).. . . . . . . . . . . . . . . . . . 8, 9

United States v. Bendtzen,

542 F.3d 722 (9th Cir. 2008).. . . . . . . . . . . . . . 11

United States v. Bond,

552 F.3d 1092 (9th Cir. 2009). . . . . . . . . . . . . . 20

United States v. Goland,

903 F.2d 1247 (9th Cir. 1990). ......... 19, 20, 23

United States v. Hinton,

222 F.3d 664 (9th Cir. 2000).. . . . . . . . . . . . . . 28

United States v. Johnson,

256 F.3d 895 (9th Cir. 2001) (en banc).. ...... 19, 20

United States v. Kanchanalak,

192 F.3d 1037 (D.C. Cir. 1999).. .......... 25, 26

United States v. Lopez-Gonzalez,

183 F.3d 933 (9th Cir. 1999).. . . . . . . . . . . . . . 30

United States v. McGoff,

831 F.2d 1071 (D.C. Cir. 1987).. . . . . . . . . . . . . 25

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TABLE OF AUTHORITIES (continued)

PAGE(s)

CASES

United States v. Monsanto,

491 U.S. 600 (1989)....................8

United States v. Thompson/Center Arms, Co.,

504 U.S. 505 (1992) (plurality). . . . . . . . . . . . . 27

United States v. Woodruff,

50 F.3d 673 (9th Cir. 1995). . . . . . . . . . . . . . . 29

Williams v. Babbitt,

115 F.3d 657 (9th Cir. 1997).. . . . . . . . . . . . . . 22

Yi v. Federal Bureau of Prisons,

412 F.3d 526 (4th Cir. 2005).. . . . . . . . . . . . . . 25

STATUTES (ENACTED)

Bipartisan Campaign Reform Act of 2002

Pub. Law 107-155, 116 Stat. 106, § 312 (2002). . . . . . 16

Pub. Law 107-155, 116 Stat. 108, § 315 (2002). . . . . . 16

STATUTES (CODIFIED)

Federal Election Campaign Act of 1979

2 U.S.C. § 437g(d) (1980). . . . . . . . . . . . . . . . 15

Current Statutes

2 U.S.C. § 431(8)(A).. ..................5

2 U.S.C. § 431(8)(A)(i). . . . . . . . . . . . . . . . 4, 5

2 U.S.C. § 437g(a)(5)(C).. . . . . . . . . . . . . . . . 26

2 U.S.C. § 437g(c).. . . . . . . . . . . . . . . . . . . 26

2 U.S.C. § 437g(d).. . . . . . . . . . . . . . . . . . . 29

2 U.S.C. § 437g(d)(1)(A)(ii).. . . . . . . . . . . . . . 14

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TABLE OF AUTHORITIES (continued)

PAGE(s)

STATUTES (CODIFIED)

Current Statutes

2 U.S.C. § 441a(a).. . . . . . . . . . . . . . . . . . 4, 5

2 U.S.C. § 441a(a)(1)(A).. ........... 10, 12, 15

2 U.S.C. § 441a(a)(8). ............... passim

2 U.S.C. § 441b. . . . . . . . . . . . . . . . . . . . . 12

2 U.S.C. § 441b(b)(2). ..................5

2 U.S.C. § 441b(c)(2). ..................9

2 U.S.C. § 441f................... passim

2 U.S.C. § 441g......................9

2 U.S.C. § 441k. . . . . . . . . . . . . . . . . . . . . 18

7 U.S.C. § 499a(b)(1). ..................7

7 U.S.C. § 499a(b)(6). ..................7

STATE LAWS AND ADVISORY OPINIONS

Conn. Gen. Stat. 9-343(g) (1959). . . . . . . . . . . . . . . 21

1998 Illinois Atty. Gen. Op. 4. . . . . . . . . . . . . . . . 22

Kansas Ethics Op. 1997-45.. . . . . . . . . . . . . . . . . . 22

Nev. Rev. Stat. § 294A.112(2)(a). . . . . . . . . . . . . . . 21

FEDERAL REGULATIONS

11 C.F.R. § 110.4(b)(2)(i). . . . . . . . . . . . . . . . . . 21

11 C.F.R. § 110.6(d). . . . . . . . . . . . . . . . . . . . . 27

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TABLE OF AUTHORITIES (continued)

PAGE(s)

LEGISLATIVE HISTORY

Federal Election Campaign Act of 1974

120 Cong. Rec. 5,861 (1974). . . . . . . . . . . . . . . 13

Bipartisan Campaign Reform Act of 2002

147 Cong. Rec. 3,187 (2001) (Sen. Christopher Bond). . . 16

147 Cong. Rec. 3,188 (2001) (Sen. Christopher Bond). . . 16

Hearing on Campaign Finance Reform, 107 Cong., 37

(2001) (Rep. Dan Burton).. . . . . . . . . . . . . . . . 16

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No. 09-50296

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

PIERCE O’DONNELL,

Defendant-Appellee.

 

GOVERNMENT’S REPLY BRIEF

I

INTRODUCTION

Section 441f provides, in part: “No person shall make a

contribution in the name of another person.” Defendant secretly

contributed $26,000 in 13 other people’s names by getting them to

purportedly contribute to a candidate in their names, with

defendant reimbursing or advancing the money. Defendant thereby

violated the plain and simple wording of Section 441f. FECA’s

purpose, legislative history, and precedent, as well as an FEC

regulation, demonstrate the same.

Defendant does not argue that Congress authorized his

contributions in the names of conduits/straw donors. But he

reads a sentence in Section 441a(a)(8), rather than Section 441f,

as prohibiting them: “The intermediary or conduit shall report

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the original source and the intended recipient.” Unlike Section

441f, Section 441a(a)(8) does not read like a prohibition. And 

adopting defendant’s reading of FECA would illogically mean:

(1) Section 441f’s prohibition -- “No person shall

make a contribution in the name of another person” --

applies only to some contributions in the name of

another (false-name contributions) despite the absence

of any textual limit and despite Congress having passed

now-Section 441f in 1971 as part of a title designed to

require disclosure of the sources of contributions;

(2) Congress prohibited contributions in the names

of conduits three years later -- fixing this nontextual

“loophole” -- not by amending now-Section 441f, but by

creating now-Section 441a(a)(8), which placed

obligations on the conduit (the least culpable party),

not on the actual contributor (the most culpable

party), flipping traditional liability principles; and

(3) Congress put these prohibitions in separate

sections because it wanted less severe penalties for

contributions in the names of conduits, although when

Congress created these differing penalties for Section

441f and other FECA provisions in 2002, Congress

indicated the opposite and stated that Section 441f

applied to conduit contributions.

Common sense dictates Congress did not intend defendant’s

reading of FECA. Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S.

50, 63 (2004) (“There is no canon against using common sense in

construing laws as saying what they obviously mean.”) (citation,

alteration, and internal quotations omitted). Instead, when

Congress broadly stated in Section 441f, “[n]o person shall make

a contribution in the name of another person,” it prohibited

defendant’s contributions in the names of 13 other people.

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In addition to the abbreviations in the opening brief, “GOB” 1

refers to the government’s opening brief, “FEC” to the FEC’s

amicus brief, “CLC” to the Campaign Legal Center’s/Democracy 21's

amicus brief, “CREW” to the Citizens for Responsibility and

Ethics in Washington’s amicus brief, “AAB” to defendant’s

answering brief, and “ACRU” to the American Civil Rights Union’s

amicus brief. Each reference is followed by the page number.

3

II

ARGUMENT

A. SECTION 441f’s PLAIN WORDING APPLIES HERE

Defendant begins by focusing on Section 441a(a)(8) (AAB 12-

13), but analysis properly starts with Section 441f because: 1

(1) statutory-construction principles require beginning with the

provision at issue (GOB 19); and (2) Congress passed Section

441a(a)(8) three years after Section 441f, so it provides little

insight into what Congress meant when drafting Section 441f,

Almendarez-Torres v. United States, 523 U.S. 224, 237 (1998)

(“These later enacted laws, however, are beside the point. They

do not declare the meaning of earlier law.”).

1. Defendant Violated Section 441f’s Straightforward

Textual Prohibition

a. Defendant made “contributions” in the “name of

another person”

Section 441f provides, in part: “No person shall make a

contribution in the name of another person.” Defendant violated

that provision by contributing $26,000 in 13 other people’s

names. Contrary to defendant’s argument, the government is not

attempting to insert words into Section 441f to reach that

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When defendant argues Section 441a(a)(8) controls, he 2

suggests he made conduit “contributions” to the candidate, i.e.,

he directed his $26,000 through the conduits to the candidate. 

At other times, defendant suggests he independently gave the

conduits money for their own use after they contributed. The

indictment, which is presumed true, charges the former.

4

conclusion. (AAB 8, 22). Rather, the government is asking this

Court to apply Section 441f’s simple words as written. Section

441f prohibits a person from: (1) making a “contribution,” 

(2) “in the name of another person.”

First, “contribution” is 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)(i), which 

defendant satisfied by giving $26,000 to elect a presidential

candidate (GOB 20). Contrary to defendant’s suggestion, Section

431(8)(A)(i) does not turn on how a contribution is made

(directly or through an intermediary), it turns on the substance

of what was done (whether there was “any gift . . . of money”

made “for the purpose of influencing any election”). Thus,

whether defendant gave a candidate a $100 bill or gave a friend a

$100 bill to forward to the same candidate, he would have made a

“contribution,” i.e., given $100 to elect that candidate.

Indeed, defendant repeatedly acknowledges his $26,000 was a

“contribution” subject to Section 441a(a)’s contribution limit

and Section 441a(a)(8). (AAB 1-2, 13, 16, 50). But Section 2

441a(a)(8) does not redefine the generally applicable definition

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of “contribution” from Section 431(8)(A)(i) for purposes of

Section 441a(a) (it merely explains that all contributions,

including those directed through an intermediary, count as those

of the source). Compare 2 U.S.C. § 441b(b)(2) (“For purposes of

this Section . . ., the term ‘contribution or expenditure’

includes a contribution or expenditure, as those terms are

defined in Section 431 of this title, and also includes . . . .”)

with 2 U.S.C. § 441a(a)(8) (“For purposes of the [contribution]

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.”); see also California Med. Ass’n v. FEC, 453

U.S. 182, 198 n.19 (1981) (applying Section 431(8)(A) under

Section 441a(a)). Because Section 441a(a)(8), like Section 441f,

uses the generally applicable definition of “contribution” from

Section 431(8)(A)(i), defendant’s concession that he met the

definition for Section 441a(a) and 441a(a)(8) means he met that

same definition for Section 441f.

Second, defendant made his contributions “in the name of

another person,” specifically, 13 other people. According to

defendant, he gave money to the conduits/straw donors “in his

true name.” (AAB 22). Although defendant gave his money to the

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Defendant suggests that reading Section 441f as prohibiting 3

“some conduit contributions but not others is inconsistent with

6

conduits, his “contributions” were to the candidate and the

candidate received the conduits’ names (not defendant’s name). 

Defendant’s argument to the contrary is premised on the notion

that he can avoid Section 441f’s prohibition by doing in two

steps what he cannot do in one. Defendant concedes if he gave

$100 to a candidate in his sister’s name (a false name), he would

violate Section 441f. But, according to defendant, if he instead

gave his sister $100 and directed her to give $100 to that same

candidate in her name, he would not contribute “in the name of

another.” Nothing in Section 441f’s text supports such a

distinction. In both cases, defendant made a contribution to the

same candidate, in the same amount ($100), in the same name (his

sister’s). In both cases, defendant would violate Section 441f

by making a “contribution in the name of another.”

b. Defendant asks this Court to read a nontextual

limit into Section 441f

This Court, thus, need only apply the text as written to

conclude that defendant violated Section 441f. Defendant, by

contrast, seeks to read a nontextual limit into that provision,

arguing that, when Congress wrote “[n]o person shall make a

contribution in the name of another person,” it prohibited only

some contributions in the name of another -- those “using a false

name” -- not those in the names of conduits/straw donors. (AAB 3

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the text and is illogical.” (AAB 13 n.13). But Section 441f

prohibits contributions in the names of conduits, not those where

the source’s name is disclosed. This distinction is compelled by

Section 441f’s text.

7

25 n.25; see also AAB 2, 16). Had Congress intended such a

limit, it would have stated so in Section 441f. (GOB 21-23).

Defendant seeks this nontextual limit because Congress did

not use words like “conduit,” “reimbursement,” and “indirect” in

Section 441f. (AAB 14). But the focus is on the words Congress

actually used, not those it could have included. (GOB 24-28). 

And Section 441f does not list any manners of contributing, such

that the absence of these terms is significant, nor is there

reason to expect such a listing given Congress’ focus on the name

of the contributor, not the manner of contribution. (Id.). 

Royal Foods Co., Inc. v. RJR Holdings, Inc., 252 F.3d 1102 (9th

Cir. 2001), is instructive. There, this Court addressed whether

a restaurant was a “dealer,” which was defined as any

person/corporation “engaged in the business of buying or selling

in wholesale or jobbing quantities . . . any perishable

agriculture commodity.” 7 U.S.C. §§ 499a(b)(1),(6). The

defendant suggested the provision was “ambiguous because it does

not explicitly include restaurants,” but this Court held:

Section 499a(b)(6) . . . does not enumerate any

entities that fall under its definition of dealer.

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. 

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252 F.3d at 1107 n.6 (citing United States v. Monsanto, 491 U.S.

600 (1989); other citation and emphasis omitted). As in Royal

Foods, the absence of words like “conduit,” “reimbursement,” and

“indirect” does not limit the meaning of the words Congress

actually chose. Congress’ choice to simply provide, “[n]o person

shall make a contribution in the name of another” demonstrates

breadth, not ambiguity, Monsanto, 491 U.S. at 609, and that broad

wording prohibits defendant’s contributions.

2. Statutory Context Does Not Support Reading a Nontextual

Limit into Section 441f

Defendant next emphasizes statutory context, highlighting

canons of construction. (AAB 17-21). Such canons, however, are

“not a license . . . to rewrite language enacted by the

legislature.” Id. at 611 (citation and internal quotations

omitted).

Defendant cites the Russello presumption, notes Section

441a(a)(8) uses the term “conduit” but Section 441f does not, and

argues Congress could not have intended for Section 441f to apply

to conduit contributions. (AAB 18-19). The government’s opening

brief explained why Congress’ use of the term “conduit” in

Section 441a(a)(8), three years after it passed Section 441f,

does not support reading a nontextual limit into Section 441f. 

(GOB 40-42). Defendant responds that the presumption applies

“even where the provisions were not adopted in the same act.” 

(AAB 19-20 n.19). Although it can apply in such circumstances

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Defendant suggests FECA does not use the term “directly” 4

without “indirectly.” (AAB 19 n.19). But (1) it does, 2 U.S.C.

§ 441b(c)(2) (“funds provided directly by individuals”); 

(2) regardless, the Russello presumption does not support reading

a limit into Section 441f given the different wording; and 

(3) accepting defendant’s argument would likely lead to reading

the same limit into Section 441g (cash limitation) and there is

no textual basis to do so there either.

9

(GOB 40-42), defendant offers no reason why it actually controls

here. Had Congress listed manners of contributing in Section

441f, but omitted “conduit” contributions, then the presumption

might apply. (Id.). But Congress did not. That Congress used

the term “conduit” three years later in a different statute with

a different focus and wording does not support reading a

nontextual limit into Section 441f’s unambiguous wording. (Id.

see Gutierrez v. Ada, 528 U.S. 250, 257-58 (2000)).

Defendant also cites the Russello presumption to argue that

Congress’ use of “indirectly” in FECA provisions, but not Section

441f, demonstrates that Section 441f does not apply here. (AAB

17-19). The government’s opening brief explained why defendant

is wrong. (GOB 39-40). Defendant’s argument is also a red- 4

herring. Although defendant funneled money through

intermediaries, he and his co-conspirator directly gave the

payments in the conduits/straw-donors’ names to the candidate

(GER 16), meaning defendant directly used the names of others

(GOB 27, 40). And a person can contribute either indirectly or

directly in a false name (GOB 27 (example)), meaning defendant’s

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10

reading of Section 441f does not turn on the presence or absence

of the term “indirectly” (GOB 27, 40).

Defendant next argues that applying Section 441f here

renders words in Section 441a(a)(8) superfluous. (AAB 19-21). 

Congress’ wording in a 1971 provision (Section 441f) should not

make words Congress used three years later in a different

provision (Section 441a(a)(8)) superfluous. See, e.g., Agredano

v. Mutual of Omaha Co., 75 F.3d 541, 544 (9th Cir. 1996) (no

“presumption where the terms appear in different statutes enacted

at different times”). Defendant suggests, however, if Section

441f applies here, Congress could have simply provided in Section

441a(a)(1)(A) -- as it did -- that “no person shall make

contributions . . . which, in the aggregate, exceed $2,000” and

it would embrace defendant’s contributions, thereby rendering

unnecessary the following words in Section 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.

The government agrees that Section 441a(a)(1)(A) embraces

defendant’s contributions without Section 441a(a)(8). But

Congress’ decision, when imposing individual contribution limits

in 1974, to clarify who is the contributor when money is provided

indirectly (the contributor or intermediary) does not alter the

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11

plain meaning of Section 441a(a)(1)(A), much less Section 441f. 

Ali v. Federal Bureau of Prisons, 552 U.S. 214, 226 (2008)

(interpretation did not render wording superfluous; “Congress may

have simply intended to remove any doubt that officers of customs

or excise were included ‘in law enforcement officers’”); United

States v. Bendtzen, 542 F.3d 722, 727 (9th Cir. 2008)

(interpretation did not render provision superfluous; definition

was likely “inserted out of excess caution”); see, e.g., Lamie v.

United States Trustee, 540 U.S. 526, 536 (2004) (plain meaning

controls over avoiding surplusage); Gutierrez, 528 U.S. at 258

(similar).

3. Section 441a(a)(8) Does Not Control and Prohibit

Contributions in the Names of Conduits

The core of defendant’s and his amicus’ argument involves

Section 441a(a)(8)’s last sentence: “The intermediary or conduit

shall report the original source and the intended recipient of

such contribution to the Commission and to the intended

recipient.” Relying on this sentence, they read Section

441a(a)(8), not Section 441f, as prohibiting contributions in the

names of conduits. (AAB 1, ACRU 2). The district court held

that Section 441a(a)(8) allowed (not prohibited) conduit

contributions (GER 4), and it did not cite this sentence in its

order (GER 3; GOB 46 n.20). Defendant and his amicus emphasize

this argument, however, to overcome the objection that the

district court created a loophole in FECA, allowing contributors

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The government did not suggest that Section 441a(a)(8) does 5

not apply to defendant’s contributions (AAB 23-24), arguing only

that Congress did not design it to address straw-donor

contributions or as the means to prohibit contributions in the

names of straw donors (GOB 44-46).

12

to hide their identities using straw donors’ names. (FEC 22; CLC

12; CREW 2; AAB 1, 16, 49-50; ACRU 2, 6).

Contrary to defendant and his amicus’ argument, Section

441a(a)(8) does not read like a prohibition. Compare 2 U.S.C. 

§ 441a(a)(1)(A) (“no person shall make contributions” exceeding

$2,000), 2 U.S.C. § 441b (“[i]t is unlawful for”

banks/unions/corporations to “make a contribution”), and 2 U.S.C.

§ 441f (“[n]o person shall make a contribution in the name of

another”). Instead, it reads like an accounting/reporting

provision, directing the conduit to provide the name of the

source to the candidate/FEC. This directive works in tandem

with, not in place of, Section 441f. (FEC 19-20; CLC 3-13). 5

Moreover, Congress created now-Section 441a(a)(8) three

years after passing FECA and now-Section 441f in 1971. Defendant

acknowledges that “full disclosure of campaign contributions,

including their source, was an objective of the 1971" Act. (AAB

44). To accomplish that objective, Congress required

records/reports with the names of contributors. Now-Section 441f

was the only provision in the 1971 Act compelling contributors to

use their own names. Thus, if defendant’s interpretation were

correct, no provision in the 1971 Act prohibited people from

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13

hiding their identities by contributing in conduits’ names,

rendering the recordkeeping/reporting conditions meaningless and

the disclosure title/purpose a nullity. (GOB 28-30 & n.14, 47-

49; see also Castaneda v. United States, 546 F.3d 682, 696 (9th

Cir. 2008) (general notion “Congress would not do anything as

preposterous as to pass a statute that was, in part or in whole,

a nullity ab initio”), cert. granted, 130 S. Ct. 49 (2009)).

Defendant does not dispute the foregoing, but suggests

Congress passed now-Section 441a(a)(8) in 1974 to fix this

loophole. (AAB 21 n.21). But, on its face, Section 441f has no

loophole, as it provides “[n]o person shall make a contribution

in the name of another” and includes neither textual limit nor

any suggestion it reaches only some contributions in the name of

another (false-name contributions). And defendant does not: 

(1) cite legislative history identifying such a loophole or

saying that Section 441a(a)(8) was meant to fix it, cf. 120 Cong.

Rec. 5,861 (1974) (wording at issue not in Senate bill); or 

(2) explain why Congress would fix a loophole in Section 441f by

creating Section 441a(a)(8), rather than amending Section 441f

(particularly given that Section 441f is a provision of general

applicability, Mariani v. United States, 80 F. Supp. 2d 352, 368

(M.D. Pa. 1999), whereas Section 441a(a)(8) applies only “[f]or

purposes of the limitations imposed by this section”). Moreover,

Section 441f potentially places liability on all three actors in

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The conduits may not face criminal liability either. Such 6

liability arises only if a person “knowingly and willfully”

violates FECA and in amounts “aggregating $2,000 or more.” 2

U.S.C. § 437g(d)(1)(A)(ii). Thus, if a contributor funneled

money through conduits who did not know about FECA’s requirements

and/or each contribution was less than $2,000, the conduits would

not face criminal liability. Moreover, the conduit may not be a

willing participant (such as where an employer forces employees

to make conduit contributions).

14

the prohibited conduct: (1) the contributor; (2) the person

allowing his/her name to be used; and (3) the candidate. Section

441a(a)(8), by contrast, imposes a duty only on the conduit, not

on the actual contributor: “The intermediary or conduit shall

report the original source.” (See also GER 41 (“FECA imposes no

obligation on the ‘original source’” to report himself); AAB 25

n.25 (“failure of the conduits to provide Defendant’s name was a

violation of their duty under Section 441a(a)(8)”); AAB 13, 16

n.17). But placing liability “solely on straw donors -- the

least culpable party -- is contrary to traditional liability

principles.” (GOB 46 n.20 (citing Bartnicki v. Vopper, 532 U.S.

514, 529 (2001)). And leaving the actual contributor free from

liability under FECA for using the names of conduits creates,

rather than fixes, a loophole.6

Defendant and his amicus assert, however, that Congress

chose a lower threshold to trigger felony penalties under 441f

than under Section 441a(a)(8). (AAB 2, 50 n.44; ACRU 2, 6). 

According to defendant, “[i]t is perfectly rational for Congress

to have concluded” that false-name contributions under Section

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The grand jury here could have charged defendant with 7

exceeding the contribution limits (Section 441a(a)(1)(A)), and

contributing in the names of others (Section 441f). A

contribution-limit/prohibition violation is always a separate and

independent charge from any based on a defendant hiding his

identity (whether Section 441f or 441a(a)(8) applies).

15

441f are “a greater evil” than contributions in the names of

conduits under Section 441a(a)(8). (AAB 26). But whether a

person contributes in false names or in the names of conduits,

the evil is the same: The public is prevented from knowing the

source of the contribution (and the contributor is provided an

avenue for evading contribution limits). (GOB 22-23). Reading 7

FECA as prohibiting this same evil in separate provisions renders

the one with more severe penalties (Section 441f) avoidable. 

That problem is particularly pronounced here because, under

defendant’s view, a contributor seeking to hide his identity can:

(1) contribute in false names and face liability/penalties under

Section 441f; or (2) contribute in the names of conduits and face

no liability/penalties under FECA for hiding his identity (as

Section 441a(a)(8) places obligations solely on the conduits). 

Defendant’s interpretation renders Section 441f avoidable and

essentially superfluous, as no rational person would chose the

first option. (GOB 24).

Moreover, until 2002, FECA violations were misdemeanors. 2

U.S.C. § 437g(d) (1980). Congress created these differing

felony penalties as part of BCRA in 2002, enacting a general

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16

felony provision triggered by contributions of $25,000 or more,

Pub. Law 107-155, 116 Stat. 106, § 312 (2002), and carving out a

lower threshold (exceeding $10,000) to trigger felony violations

of Section 441f, 116 Stat. 108, § 315. As the government and its

amici noted (and defendant does not dispute): (1) Congress

passed this carve-out for Section 441f after holding hearings on

conduit/straw-donor violations from the 1996 election (during

which Congress noted that Section 441f applied to them), (GOB 53-

54); (2) the legislative history highlights that the carve-out

for Section 441f was created because of unhappiness over

penalties for conduit/straw-donor contributions, 147 Cong. Rec.

3,187-3,188 (2001) (Sen. Christopher Bond) (introducing

provision; explaining purpose); Hearing on Campaign Finance

Reform, 107 Cong., 37 (2001) (Rep. Dan Burton) (proposing similar

legislation for Section 441f violations; noting “[c]onduit

contributions are a serious and growing problem. . . . Current

penalties for making conduit contributions are too lenient”); and

(3) Congress entitled Section 441f’s carve-out provision,

“[i]ncrease in penalties imposed for violations of conduit

contribution ban,” 116 Stat. 108, § 315. The differing penalties

thus undermine (rather than support) defendant’s argument.

Taken as a whole, accepting defendant’s argument would mean: 

(1) Section 441f’s prohibition -- “No person shall make a

contribution in the name of another person” -- applies only to

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17

some such contributions (false-name contributions) despite the

lack of textual limit; (2) Congress prohibited contributions in

the names of conduits three years later in a different provision,

placing liability only on conduits, not the actual contributors;

and (3) Congress did so because it wanted less severe penalties

for contributions in the names of conduits, although when it

created the differing penalties, Congress indicated the opposite

and stated that Section 441f applied to conduit contributions. 

Common sense dictates Congress did not intend defendant’s

proposed scheme. Koons Buick, 543 U.S. at 63. To the contrary,

when Congress stated, “[n]o person shall make a contribution in

the name of another person,” it meant any contribution in the

name of another person, not just some such contributions.

B. PRECEDENT SUPPORTS SECTION 441f’s PLAIN WORDING

The government’s opening brief cited 14 cases recognizing

that Section 441f applies to straw-donor/conduit contributions. 

(GOB 34-37). The government amici cited additional cases, most

notably FEC v. Williams, CV 93-6321-ER (C.D. Cal. Jan. 31, 1995)

(FEC APPENDIX 18) (granting summary judgment; “[d]efendant’s

conduct in either advancing or reimbursing the $1,000 to the 22

individuals violates the prohibition of making contributions 

. . . in another person’s name. This constitutes a violation of

2 U.S.C. § 441f.”), rev’d on other grounds, 104 F.3d 237 (9th

Cir. 1996). Although each of these 15 decisions recognized that

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18

Section 441f applies here, defendant devotes substantial space to

minimizing these cases. (AAB 28-36). The government generally

disagrees with defendant’s case descriptions. Compare, e.g., AAB

32 (Mariani referenced disclosure, which is provided for by

Section 441a(a)(8), and “it is clear that the court made no

determination as to whether conduit contributions were prohibited

by Section 441f”) with Mariani v. United States, 212 F.3d 761,

766, 775 (3d Cir. 2000) (en banc) (stating “Section 441f of the

FECA, the conduit contribution ban or ‘anti-conduit’ provision,

prohibits one from making a contribution ‘in the name of

another;’” holding Section 441f did not violate First Amendment

because “[p]roscription of conduit contributions” was seemingly

at core of Buckley). The government, however, readdresses only

two cases in detail.

First, in McConnell v. FEC, 540 U.S. 93 (2003), the Supreme

Court decided a First Amendment challenge to a new BCRA provision

(2 U.S.C. § 441k) providing that minors “shall not make a

contribution.” The government argued the provision protected

“against corruption by conduit; that is donations by parents

through their minor children to circumvent contribution limits

applicable to the parents.” Id. at 232. The Court invalidated

the provision, noting, in part, the government’s “scant evidence

of this form of evasion” which “[p]erhaps” “result[ed] from

sufficient deterrence of such activities” by Section 441f, which

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19

prohibited contributions “in the name of another.” Id.

Defendant and his amicus question whether the Court was

referencing the same conduct as here. (AAB 30; ACRU 11 n.2). 

The Court, however, mentioned corruption by “conduit” and noted

that the conduct involved parents contributing “through” their

children. 540 U.S. at 232. Defendant next suggests “Section

441a would equally explain the lack of a need for the disputed

provision.” (AAB 30). But, after considering FECA/BCRA in

detail, the Court identified Section 441f as the provision it

believed already prohibited contributions in the names of

conduits, not Section 441a(a)(8). Defendant finally notes the

discussion is dictum. (AAB 30). It is, however, Supreme Court

dictum. Laub v. United States Dep’t of Interior, 342 F.3d 1080,

1090 n.8 (9th Cir. 2003) (Supreme Court dicta not “lightly

disregarded”). And, regardless, the Court recognized what is

apparent from Section 441f’s wording: It applies to conduit

contributions.

Defendant also dismisses United States v. Goland, 903 F.2d

1247 (9th Cir. 1990), because it resolved a constitutional, not a

statutory-interpretation, challenge. (AAB 31 & n.29). Although

there has been dispute about when case discussion controls,

compare United States v. Johnson, 256 F.3d 895, 914 (9th Cir.

2001) (en banc) (Kozinski, J.) (controlling, even if unnecessary,

when resolves germane issue after reasoned consideration) with

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20

id. at 920-21 (Tashima, J., concurring) (not binding when

unnecessary), defendant’s out-of-hand dismissal is misplaced.

First, the defendant in Goland contributed in the names of

conduits, he was thus charged with violating Section 441f and, as

part of a discussion of FECA’s provisions and history, this Court

stated that Section 441f applied to conduit contributions. 903

F.2d at 1249-52. This Court discussed the statutory scheme and

Section 441f not as a whim, but because it was considering a

constitutional challenge to them. Id. at 1295-61. In such

circumstances, a statement about the meaning of a statute is

controlling. United States v. Bond, 552 F.3d 1092, 1096 (9th

Cir. 2009) (“[D]iscussion in a published opinion . . . is binding

circuit law regardless of whether it was in some technical sense

‘necessary.’”) (citation and internal quotations omitted).

Second, although this Court resolved a constitutional claim,

it first determined the defendant had standing to raise a First

Amendment claim to anonymous speech, even though he made conduit,

not anonymous, contributions. 903 F.2d at 1255. This Court

allowed the defendant to press his claim because FECA prevented

anonymous contributions, meaning the defendant had to “violat[e]”

the Act by making conduit contributions. Id. The interpretation

of Section 441f (and that the defendant violated it) appears

necessary to standing.

Third, even if not controlling, this Court (like the Supreme

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In response to a government amici (CREW 14-16), defendant 8

discusses state laws, observing that some are worded differently

than Section 441f (AAB 36-41). That Congress had other wording

choices, however, is not helpful in deciding the meaning of the

words Congress actually chose. (GOB 24-25). That is

particularly true here where these state laws were generally

adopted after Section 441f. But see Conn. Gen. Stat. 9-343(g)

(1959). Indeed, one of the laws cited defines “contribution in

the name of another” to include wording modeled on the FEC’s

regulation applying Section 441f. Compare Nev. Rev. Stat. 

§ 294A.112(2)(a) with 11 C.F.R. § 110.4(b)(2)(i). Defendant also

notes that at least one law worded similarly to Section 441f was

interpreted to apply to straw-donor contributions, but argues

21

Court in McConnell) recognized that Section 441f applies to

conduit contributions, highlighting that Section’s plain meaning.

Apart from criticizing these numerous cases, defendant and

his amicus fail to cite any case, law-review article, or other

source even suggesting their interpretation of FECA. FECA is

nearly 40 years old and, as the government noted, conduit

violations under Section 441f are one of FECA’s most frequent

violations. (GOB 38). The FEC supported that statement, noting

that, since 1990, it brought 45 proceedings against more than 220

people under Section 441f for the same conduct and, since 2004,

the Department of Justice (“DOJ”) prosecuted at least 15

defendants under Section 441f for the same conduct. (FEC 10 &

n.4). Given the age of FECA and the number of actions under

Section 441f for the same conduct, defendant’s and his amicus’

failure to identify any authority supporting their interpretation

suggests Section 441f does not have that meaning (much less does

it unambiguously have that meaning).8

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that interpretation is not persuasive because there was no

“analogue” there to Section 441a(a)(8). (AAB 41 n.33). But FECA

also did not have such an analogue when Congress passed nowSection 441f in 1971 and, regardless, these interpretations

highlight Section 441f’s plain meaning. Kansas Ethics Op. 1997-

45 (applying to straw donors); 1998 Illinois Atty. Gen. Op. 4

(similar statute prohibits “‘laundering’ of contributions to

disguise the source” of funds).

22

C. WERE THERE AMBIGUITY, DEFERENCE TO THE FEC IS REQUIRED

If there were ambiguity, deference to the FEC is required. 

(GOB 55-57). Defendant and his amicus suggest two reasons to the

contrary. But Section 441f is not fairly susceptible to their

interpretation, defeating both arguments. (GOB 55 & n.26). And,

regardless, as explained below, both arguments lack merit.

1. Constitutional-Avoidance Principles Do Not Apply

Defendant and his amicus argue that “Section 441f must be

narrowly interpreted” because of First Amendment concerns. (AAB

52; see also AAB 55 n.46; ACRU 7). Although constitutional

avoidance can support a narrowing interpretation, DeBartolo Corp.

v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.

568, 575 (1988), the constitutional issue must, at a minimum,

raise “serious” concerns where Chevron deference is involved 

(GOB 55 n.26 (citing Williams v. Babbitt, 115 F.3d 657 (9th Cir.

1997)); see, e.g., Morales-Izquierdo v. Gonzales, 486 F.3d 484,

492-93 (9th Cir. 2007) (en banc) (avoidance “plays no role” in

second Chevron step)). The district court recognized that

precedent barred defendant’s First Amendment claim (GOB 55 n.26)

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Defendant does not identify what right Section 441f 9

implicates. Defendant concedes he had to disclose his identity

(the only question being under which FECA provision). Defendant

suggests Section 441f interferes with his right to solicit

others, but it does not (limiting only his use of others’ names).

23

and defendant has not argued to the contrary, much less asserted

his claim raises “serious” issues. Rather than impinge “first 9

amendment values,” this Court noted that FECA’s disclosure

provisions “may actually further them” by informing the

electorate which interests support a candidate. Goland, 903 F.2d

at 1261 (emphasis omitted). Thus, invocation of constitutionalavoidance principles is misplaced.

2. Deference, Not Lenity, Controls

Although the district court recognized that the FEC was

entitled to Chevron deference, it held that lenity applied were

there ambiguity. As noted, however, this Court has held that

deference controls over lenity. (GOB 55-57 (citing Mujahid v.

Daniels, 413 F.3d 991 (9th Cir. 2005); Pacheco-Camacho v. Hood,

272 F.3d 1266 (9th Cir. 2001))). Defendant first argues that

this Court was wrong in Pacheco-Camacho to believe lenity applied

to good-time credit calculations. (AAB 53). Even if true, the

relevant holding remains, namely, that deference controls over

lenity. Mujahid, 413 F.3d at 999 (Pacheco-Camacho addressed

“when the rule of lenity takes priority over Chevron deference;”

reaffirming Pacheco-Camacho); Pacheco-Camacho, 272 F.3d at 1271

(“The rule of lenity . . . does not prevent an agency from

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24

resolving statutory ambiguity through a valid regulation.”).

Defendant suggests this Court was also wrong to hold that

deference controls over lenity. (AAB 53 n.45). But a threejudge panel is bound by that precedent. Irons v. Carey, 505 F.3d

846, 854 n.5 (9th Cir. 2007). And defendant has not identified

why this precedent is wrong. This Court noted that applying

deference over lenity “comported with the rule [of lenity’s]

purpose.” Mujahid, 413 F.3d at 998. Lenity is “premised on two

ideas:” (1) defendants should have fair warning of what the law

intends; and (2) courts should not define criminal activity. 

Babbitt v. Sweet Home Chapter, 515 U.S. 687, 704 n.18 (1995). A

regulation (particularly a longstanding one as here) provides

fair warning. Babbitt, 515 U.S. at 704 n.18 (two-decade-old

regulation gave “fair warning” and did not “offend the rule of

lenity”); Mujahid, 413 F.3d at 998 (“Regulations such as the one

at issue here gives the public sufficient warning to ensure that

nobody mistakes the ambit of the law.”) (citation and internal

quotations omitted); Pacheco-Camacho, 272 F.3d at 1272 (same). 

And where, as here, Congress delegated enforcement of an Act to

an agency (GOB 56) and the agency exercises its authority, the

court is asked to defer to the agency, not to define criminal

liability. Moralez-Izquierdo, 486 F.3d at 493. Thus, this Court

correctly held that applying deference over lenity comports with

lenity’s purpose. Indeed, Babbitt compelled that holding.

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25

Defendant argues that this Court’s precedent is inconsistent

with other circuits’. (AAB 53-55). But, as this Court noted,

that is generally not the case. Mujahid, 413 F.3d at 998 n.7;

see also Mizrahi v. Gonzales, 492 F.3d 156, 174-75 (2d Cir. 2007)

(“lenity is a doctrine of last resort, and it cannot overcome a

reasonable BIA interpretation entitled to Chevron deference”); Yi

v. Federal Bureau of Prisons, 412 F.3d 526, 535 (4th Cir. 2005)

(“Rather than apply a presumption of lenity to resolve the

ambiguity, Chevron requires that we defer.”) (emphasis omitted);

O’Donald v. Johns, 402 F.3d 172, 174 (3d Cir. 2005) (per curiam)

(similar); Perez-Olivo v. Chavez, 394 F.3d 45, 53 (1st Cir. 2005)

(questioning whether lenity applied but, assuming it did, “lenity

does not foreclose deference to an administrative agency’s

reasonable interpretation”); Amador-Palomares v. Ashcroft, 382

F.3d 864, 868 (8th Cir. 2004).

Defendant nevertheless cites Dolfi v. Pontesso, 156 F.3d 696

(6th Cir. 1998), and United States v. McGoff, 831 F.2d 1071 (D.C.

Cir. 1987). But this Court noted Dolfi in Mujahid, 413 F.3d 998

at n.7, and did not follow it. And the D.C. Circuit decided

McGoff before Babbitt. After Babbitt, it too has recognized that

deference controls over lenity: “To argue . . . lenity compels

us to reject the FEC’s otherwise reasonable interpretation of an

ambiguous statutory provision is to ignore established

principles.” United States v. Kanchanalak, 192 F.3d 1037, 1050

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26

n.23 (D.C. Cir. 1999) (citing Babbitt, 515 U.S. at 704 n.18).

Defendant and his amicus also ask this Court to treat the

FEC -- a non-party to this criminal case -- as the prosecutor,

thereby declining deference. (AAB 55; ACRU 11). They rely on a

Justice Scalia concurrence suggesting the DOJ is not entitled to

deference and noting criminal statutes are “not administered by

any agency but by the courts.” Crandon v. United States, 494

U.S. 152, 177 (1990). The FEC, however, is an independent

regulatory agency with civil enforcement power and it can neither

file criminal charges nor insist on prosecution. (The FEC may

refer an apparent criminal violation to the Attorney General, who

need only report back “any action taken.” 2 U.S.C. 

§§ 437g(a)(5)(C),(c).) And, unlike criminal statutes, which are

administered by courts, Congress has delegated administration of

FECA to the FEC, and this Court and the Supreme Court have held

the FEC is entitled to deference. (GOB 56-57; FEC v. DSCC, 454

U.S. 27, 37 (1981) (FEC “is precisely the type of agency to which

deference should presumptively be afforded”)).

At bottom, defendant suggests criminal cases are different

and lenity, not deference, controls in them. But (1) as

explained above, this Court and the Supreme Court have recognized

that applying deference over lenity comports with lenity’s

purpose; (2) this Court is interpreting an election statute as it

applies in all cases (criminal, civil, and administrative); its

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Defendant suggests he prevails under 11 C.F.R. § 110.6(d) 10

(AAB 43 n.36), which treats a contribution as made by both the

conduit and contributor when the conduit controls the choice of

candidate. Because the indictment makes clear that the conduits

were recruited to “contribute” to a particular candidate (GER

15), Section 110.6(d) does not apply. Even if it did, defendant

still violated Section 441f by not using his own name.

27

meaning does not turn on the happenstance of whether first

interpreted in a civil or criminal case, United States v.

Thompson/Center Arms, Co., 504 U.S. 505, 518 n.10 (1992)

(plurality) (lenity is “not a rule . . . calling for courts to

refrain in criminal cases from applying statutory language that

would have been held to apply if challenged in civil

litigation”); and (3) the existence of statutory criminal

penalties (not a prosecution) triggers lenity, Leocal v.

Ashcroft, 543 U.S. 1, 11 n.8 (2004) (dictum), meaning applying

lenity here would incorrectly prevent deference to the FEC and

numerous other agencies enforcing statutes with criminal

penalties, Babbitt, 515 U.S. at 703-04 & n.18 (applying deference

in such circumstances); GOB 56-57 (precedent deferring to FEC).10

D. DEFENDANT IMPERMISSIBLY CHALLENGES THE INDICTMENT’S

ALLEGATIONS

Defendant attempts to recast the facts and, for the first

time, procedurally challenges the indictment. Relying on out-ofcontext snippets, defendant suggests there was a “two-step

sequence of events:” (1) the conduits chose to contribute; and

(2) “[s]ubsquently” in a “second transaction,” defendant chose to

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Defendant insists the indictment alleges only that he 11

reimbursed (not advanced) money, but it does not. (GER 18)

(“advanced . . . and reimbursed”). Whether there was

advancement, reimbursement, or both does not affect the

government’s analysis. Defendant also objects to the term

“straw-donor” contribution because it is not used in the

indictment. (AAB 14 n.14). The term, however, is descriptive of

the conduct alleged and avoids confusion between disclosed and

concealed conduit contributions. Whatever term is used, the

question here is one of statutory scope. Indeed, the district

court’s error was partly rooted in its focus on terminology over

Section 441f’s wording. (GOB 43-44).

28

reimburse them. (AAB 5; see also AAB 7 n.7, 13-14 n.13, 27-28).

When considering a motion to dismiss, however, the indictment is

presumed true (GOB 3 n.2) and “read in its entirety, construed

according to common sense, and interpreted to include facts which

are necessarily implied,” United States v. Hinton, 222 F.3d 664,

672 (9th Cir. 2000) (citations and internal quotations omitted). 

Read in context, the indictment alleges that defendant and his

co-conspirator solicited others to contribute to a candidate with

the promise that defendant would provide the money. (GER 15, 11

18). The indictment makes clear that these people agreed to

“contribute” only because of defendant’s promise to provide the

money. (Id.). Defendant and his co-conspirator collected

payments from them, reimbursed/advanced them the money from

defendant’s account, and forwarded the payments in their names to

the candidate. (GER 15-16, 18). Thus, the indictment alleges a

single course of action and a standard concealed-conduit/strawdonor scheme: Defendant provided $26,000 to a candidate, but

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through, and using the names of, 13 straw donors/conduits.

Defendant also focuses on the indictment’s reference to

“contributions” from the conduits and suggests only they (not he)

made “contributions,” necessitating dismissal. (AAB 4-7, 11-12,

58). But the indictment identifies these individuals as “conduit

contributors” (GER 16-17; see also GER 18 (table heading for

“conduit contributor”)), which it defines as people who permitted

their names to be used to effect contributions in the name of

another (GER 14). The indictment, thus, makes clear that the

conduits were not the actual contributors. (See GER 19 (falsestatement charge based on candidate reporting “certain

individuals . . . had each made a $2,000 contribution. . ., when,

in fact, . . . defendant . . . made those contributions by

providing his money to those individuals”)). Regardless, all

counts alleged that defendant made “contributions,” which is all

that is required. (GER 15 (“defendant . . . conspired . . . to

make conduit contributions . . ., that is, contributions in the

names of others,” 2 U.S.C. §§ 437g(d), 441f); GER 18 (“defendant

. . . made . . . contributions in the names of other persons," 2

U.S.C. §§ 437g(d), 441f); GER 19; United States v. Woodruff, 50

F.3d 673, 676 (9th Cir. 1995) (indictment generally sufficient

“if it sets forth the elements”)). Although not required, the

indictment alleged the underlying facts, citing 13 people in

whose name defendant contributed and the dates and amounts

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($2,000 each). (GER 18). And neither defendant nor the district

court expressed confusion about the nature of the charges. 

United States v. Lopez-Gonzalez, 183 F.3d 933, 935 (9th Cir.

1999) (indictment designed to provide notice of charges).

III

CONCLUSION

Accordingly, this Court should reverse the dismissal.

DATED: December 9, 2009 Respectfully submitted,

GEORGE S. CARDONA

Acting United States Attorney

CHRISTINE C. EWELL

Assistant United States Attorney

Chief, Criminal Division

________/s/______________________

ERIK M. SILBER

Assistant United States Attorney

Criminal Appeals Section

Attorneys for Plaintiff-Appellant 

UNITED STATES OF AMERICA

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12/09/2009 /s/ Erik Silber

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