FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50296

Plaintiff-Appellant, D.C. No.

v.  2:08-cr-00872-

SJO-1 PIERCE O’DONNELL,

Defendant-Appellee. OPINION 

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

8691
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.

8694 UNITED STATES v. O’DONNELL
OPINION

FISHER, Circuit Judge:

Federal campaign finance law says that “[n]o person shall

make a contribution in the name of another person.” 2 U.S.C.

§ 441f. We hold that this law 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.”

BACKGROUND

Defendant Pierce O’Donnell is alleged to have contributed

$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 but 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 contributions 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). 

UNITED STATES v. O’DONNELL 8695
In 1974, Congress also enacted a new provision,

§ 441a(a)(8), relating to the reinstatement of contribution limits. See Federal Election Campaign Act Amendments of 1974,

Pub. L. No. 93-443, 88 Stat. 1263 (1974). 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 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

I.

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 person who

may be real or fictional, with or without obtaining that per8696 UNITED STATES v. O’DONNELL
son’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, 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 interpretation

that § 441f cannot apply to straw donor contributions 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

determining the plain meaning of its provisions.”). Relying on

these tools of interpretation, we hold that § 441f unambiguously applies to straw donor contributions.1

1The only court to have squarely addressed this issue concluded that

§ 441f applies to straw donor contributions. See United States v. Boender,

___ F. Supp. 2d ___, 2010 WL 725318 (N.D. Ill. Feb. 24, 2010). Numerous cases have assumed the same. See, e.g., McConnell v. FEC, 540 U.S.

93, 232 (2003), overruled 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

UNITED STATES v. O’DONNELL 8697
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 contributions

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 intermediary, 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 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

(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 single 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. 

8698 UNITED STATES v. O’DONNELL
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)(i). 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

“[t]o 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 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 intermediary’s essentially ministerial role to the substance 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

UNITED STATES v. O’DONNELL 8699
has violated the statute if his own name was not provided as

the source.2

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 campaign. The concern, in other words, is that

the defendant does not actually become the source — and thus

no offense takes place — until the defendant reimburses 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

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 reimburses 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 circumstances,

however, we reject O’Donnell’s view that the contribution

would not have been unlawful at the time it was made. When

2We need not decide whether and under what circumstances the intermediary should also be understood to have made a contribution, such that

the intermediary’s name must jointly be reported. We note, however, the

Federal Election Commission regulation stating that when an intermediary

exercises direction 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). 

8700 UNITED STATES v. O’DONNELL
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 campaign.

Because the indictment alleges that O’Donnell then actually

followed through with the reimbursements, 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 reimbursement of

their intermediaries.3

[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 interpreting the

latter provision as having a more limited scope, an argument

the district court found persuasive. 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.

3O’Donnell’s timing argument fails for an additional reason based on

§ 441a(a)(8), which we discuss in section I.B infra. 

UNITED STATES v. O’DONNELL 8701
2 U.S.C. § 441a(a)(8) (emphasis added). He argues that both

of these italicized phrases would be unnecessary 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. Therefore,

§ 441f’s 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) (“[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 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 presumption is “ ‘strongest’ in

those instances in which the relevant statutory provisions

were ‘considered simultaneously when the language raising

the implication 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 provisions 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.”).4 And

4

In Youssef, both statutes at issue prohibited false statements to government officials, and one included the word “materially” to modify “false”

8702 UNITED STATES v. O’DONNELL
even if the parallels were stronger, § 441f was passed three

years earlier than § 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

Holdings, 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(a)(8) actually undermines

O’Donnell’s interpretation, because the language of that provision shows that indirect gifts are merely particular types of

whereas the other did not. Relying in part on Russello, we declined to read

a materiality requirement 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 otherwise are less

aligned in purpose and structure than the statutes in Youssef. 

UNITED STATES v. O’DONNELL 8703
contributions, subsumed within 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 “contributions,

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) demonstrates 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 specifically

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 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 encompasses only funds that the original

8704 UNITED STATES v. O’DONNELL
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 Election Campaign Act

of 1971, which overall sought to regulate campaign finance

through a regime of disclosure requirements. For example, in

addition to § 441f’s 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). Simultaneously, the

Act eliminated the individual contribution 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 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

UNITED STATES v. O’DONNELL 8705
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

“[d]ummy contributors” were used both to avoid disclosure as

well as to evade contribution limits). 

[8] To this reasoning, O’Donnell responds that Congress

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 enacting

§ 441a(a)(8). Moreover, although § 441a(a)(8) requires the

original source of funds to be reported, it addresses only the

intermediary’s obligations and not the principal offender in

the straw donor scheme.5 In contrast, § 441f under the government’s interpretation properly criminalizes the conduct of

both parties involved.

5Although § 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 contributions 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). 

8706 UNITED STATES v. O’DONNELL
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 government’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 insignificant. 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 § 441f’s 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. 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).

* * *

[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 contributions. 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 defendants subjected to them.”

United States v. Santos, 128 S. Ct. 2020, 2025 (2008) (pluralUNITED STATES v. O’DONNELL 8707
ity 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. 

In any event, O’Donnell has at most shown that a narrower

interpretation of § 441f is conceivable, but that is insufficient

to establish ambiguity. See Smith v. United States, 508 U.S.

223, 239 (1993) (“The mere 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.

II.

[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 nec8708 UNITED STATES v. O’DONNELL
essarily 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 inadequate

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 allegations that O’Donnell reimbursed the contributions 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 contributions, 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 further hold that the indictment against O’Donnell

is sufficient. Accordingly, the district court’s order dismissing

counts one and two of the indictment is reversed, and the case

is remanded.

REVERSED and REMANDED.

UNITED STATES v. O’DONNELL 8709