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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 17-CV-22643-COOKE

FEDERAL ELECTION COMMISSION,

Plaintiff,

v.

DAVID RIVERA,

Defendant.

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REPLY TO PLAINTIFF’S MEMORANDUM IN OPPOSITION 

TO DEFENDANT’S MOTION TO DISMISS COMPLAINT 

Comes Now, defendant DAVID RIVERA, by and through his undersigned counsel, and files 

this reply to plaintiff’s memorandum in opposition to defendant’s motion to dismiss complaint. 

Mr. Rivera, although he denies all the allegations raised in the complaint, in further support of this

motion to dismiss, states the following:

The complaint filed in this case accuses David Rivera of having knowingly and willfully 

violated 52 U.S.C. §30122 and 11 C.F.R. §110.4(b)(1)(iii) by having made contributions in the 

name of another when he caused, directed, and assisted in the making of contributions in the name 

of others to Justin Lemar Sternad’s 2012 primary campaign in Florida’s 26th U.S. Congressional 

District. (Complaint, paragraph 37). §30122 (formerly 2 U.S.C. §441(f)) states in its entirety “no 

person shall contribute 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”. The statute does not define the term “in the name of another 

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person”. Plaintiff contends that this phrase may mean using a false name, or it may mean the name 

of a specific person whose name is not the same as the contributor. Under the first reading, the 

statute would prohibit contributions under “a name that is not a real name, but one that is made up.” 

Under the second interpretation, the statute prohibits a person from using the name of another 

person i.e. a conduit, to make a contribution. The Federal Election Commission argues that both 

interpretations would be a violation of §30122. For the first time, however, in its memorandum in 

opposition to the motion to dismiss, the Federal Election Commission argues that Rivera did not 

submit donations in a conduit scheme involving straw persons who inaccurately identified 

themselves as contributors (D.E. 20, p. 5), but now argues that the complaint is based upon Mr. 

Rivera having made contributions under a false name. Thus, Mr. Rivera is not accused of having 

used Alliegro, or any other conduit, to make donations to the Sternad campaign. (D.E. 20, p.14-

15). 

The complaint makes no allegation that Mr. Rivera falsely documented or made an effort to 

misrepresent to the vendors or to Sternad that their donations were made by “another person” or 

under a false name. The complaint alleges that Sternad was aware of, and agreed to, Rivera’s 

alleged offer to help fund his campaign. (Complaint, paragraphs 1 and 14). The complaint is silent 

and never contends that Rivera disguised or hid his alleged participation (from Sternad or anyone 

else) in the effort to fund Sternad’s campaign. 

The complaint clearly alleges that Rivera assisted with donations and in-kind contributions 

by hiring vendors to provide service for the Sternad committee. (Complaint, paragraphs 15 and 

16). However, nowhere in the complaint is there a contention that Rivera filled out a false 

document or provided false information to the Sternad campaign. In order for a violation of §30122 

to have occurred, according to the FEC’s theory, Mr. Rivera would have had to submit to the 

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Sternad committee some form of information, written or oral, providing a fake name as the source 

of the funds used to pay the vendor. No such allegation has been made within the four corners of 

the complaint. Furthermore, in its memorandum in opposition, the FEC for the first time accuses 

Mr. Rivera of having “used Alliegro to direct Sternad to provide a false name for the source of the 

funds on its campaign disclosure form” (D.E. 20, p. 13). In truth, the complaint makes no mention 

of Mr. Rivera participating in any way in the decision for Sternad to falsify his disclosure reports. 

The complaint states “the reports fail to accurately disclose the source of the contributions 

described in paragraphs 13 to 21. Rather, upon Alliegro’s instructions, Sternad concealed the 

source of the contributions by falsely reporting them as loans from his personal funds to the Sternad 

committee” (Complaint, paragraph 22). The FEC might assume that Ms. Alliegro acted on the 

instructions of Mr. Rivera when she told candidate Sternad to put false information on his 

disclosure form, but the complaint fails to make that allegation. The complaint does not contain a 

single fact demonstrating that Mr. Rivera hid his identity from the vendors or from Sternad. In fact, 

the complaint alleges that Mr. Rivera used vendors with whom he was very familiar because he had 

used the same vendors in his own campaign. (Complaint, paragraph 16). 

Plaintiff seems to believe that by alleging that Mr. Rivera paid the vendors in cash, or chose 

not to have the vendors’ invoices in his name, are examples of how he provided “undisclosed funds 

to the vendors.” (Complaint, paragraphs 17-19). Paying vendors in cash, or having a check 

delivered from a non-profit organization that Rivera allegedly helped establish, by themselves, do 

not establish that Mr. Rivera “used a false name or made “a contribution in the name of another”. 

Whoever physically paid the vendors and how the vendors were paid are not of great importance. 

What is required in order for §30122 to be violated is to hide the identity of the payor of the in-kind 

contributions from the candidate or the committee, or to somehow keep the information from being 

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reported on the disclosure reports. There is no allegation in this case that Mr. Rivera did that. In 

fact, the complaint states the opposite. The FEC alleges that the persons, (Rivera, Alliegro, and 

Sternad) all were in agreement that Rivera was going to provide funds to Sternad’s primary 

campaign (Complaint, paragraphs 14, 15). 

Under the facts established in this complaint, the only way Mr. Rivera could be liable for 

violating §30122 was if he was accused of instructing Ms. Alliegro to go to Mr. Sternad and tell 

him not to disclose the fact that Mr. Rivera was the source of the donations and the in-kind 

contributions to the vendors. In its memorandum, the FEC repeatedly inserts “facts” that do not 

appear in its complaint. Plaintiff argues in its memorandum that Rivera “concealed his 

involvement in the payments to the vendors and had Alliegro interact with Sternad and instruct him 

to falsely attribute his own name as the source of the in-kind contributions.” .... “Rivera used 

Alliegro to direct Sternad to provide a false name for the source of those fund on his campaign 

disclosure reports to the FEC” (DE 20, p.13). These important facts are missing from the complaint. 

What appears in the complaint is that Ms. Alliegro, on her own, instructed Mr. Sternad to falsify his 

disclosure forms. (Complaint, p. 22). 

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Without an allegation that Mr. Rivera himself used a false name, or that he secretly made 

donations without the knowledge of Mr. Sternad, or that he instructed Sternad, through Alliegro, to 

falsify his disclosure forms, there cannot be a violation of Title 52 U.S.C. §30122. 

Respectfully submitted,

ROY J. KAHN, P.A.

800 Brickell Avenue, Suite 1400

Miami, Florida 33131

Tel: (305) 358-7400

Fax: (305) 358-7222

/s/___Roy J. Kahn________

ROY J. KAHN

Florida Bar No. 224359

rjk@roykahnlaw.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 18, 2017, I electronically filed the foregoing 

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

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

_/s/ Roy J. Kahn________

ROY J. KAHN

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