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. 

_________________________ 

On Appeal from the United States District Court 

for the Central District of California 

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

Hon. S. James Otero, United States District Judge 

__________________________ 

BRIEF OF AMICUS CURIAE 

AMERICAN CIVIL RIGHTS UNION 

IN SUPPORT OF APPELLEE 

AND AFFIRMANCE 

_________________________ 

 Peter Ferrara 

 American Civil Rights Union 

 1232 Pine Hill Rd. 

 McLean, VA 22101 

 703-582-8466 

 peterferrara@msn.com 

 Counsel for Amicus Curiae 

 American Civil Rights Union

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CORPORATE DISCLOSURE STATEMENT 

Pursuant to Fed. R. App. 26.1, Amicus Curiae American Civil Rights 

Union submits this corporate disclosure statement. The American Civil 

Rights Union is a non-profit, non-stock corporation with no parent 

corporation, and no publicly held corporation owns 10% or more of its 

stock. It is organized under Section 501(c)(3) of the Internal Revenue Code 

as a non-partisan, educational, legal policy organization. 

AUTHORITY OF AMERICAN CIVIL RIGHTS UNION 

TO FILE AMICUS CURIAE BRIEF 

All parties have consented to the filing of this brief. 

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TABLE OF CONTENTS 

 Page

CORPORATE DISCLOSURE STATEMENT........................i 

TABLE OF CONTENTS.................................................................ii 

TABLE OF AUTHORITIES...........................................................iii 

INTEREST OF AMICUS CURIAE...................................................1 

SUMMARY OF ARGUMENT....................................................2 

 STATEMENT OF FACTS................................................3 

ARGUMENT................................................................4 

I. THE DEFENDANT O’DONNELL DID NOT COMMIT 

THE VIOLATION CHARGED BASED ON THE FACTS

ALLEGED IN THE INDICTMENT...............................4 

II. THE PLAIN TEXT OF THE STATUTE SETTLES THIS 

CASE......................................................................8

CONCLUSION.............................................................12 

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TABLE OF AUTHORITIES 

Cases Page

AFL-CIO v. FEC,177 F. Supp. 2d 48 (D.D.C. 2001), 

aff’d on other grounds, 333 F.3d 168 (D.C. Cir. 2005)................12 

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003)...............................7 

Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438...............................8

Barnhart v. Walton, 535 U.S. 212 (2002)........................................12

Buckley v. Valeo, 424 U.S. 1 (1976)...............................................7

Caminetti v. United States, 242 U.S. 470 (1917)................................8

Central Valley Cmty. Coll. v. Katz, 546 U.S. 356 (2006)......................10

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)............................10

Consumer Prod. Safety Comm’n v. GTE, Sylvania, Inc., 

447 U.S. 102 (1980).........................................................9

Crandon v. United States,494 U.S. 152 (1990).................................11

Demarest v. Manspeaker,498 U.S. 184 (1991)..................................12

Emily’s List v. FCC, 581 F. 3d 1 (D.C. Cir. 2009)...............................7

Exp. Group v. Reef Indus., Inc. 54 F.3d 1466 (9th Cir. 2004)..................10

Fasulo v. United States, 272 U.S. 620..............................................7 

Jama v. ICE, 543 U.S. 335 (2005).................................................10

McConnell v. FEC, 540 U.S. 93 (2003)...........................................11

McNally v. United States, 483 U.S. 350 (1987)................................7,12 

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Perrin v. United States, 444 U.S. 37, 42 (1979)...................................8 

Pub. Employees Ret. Sys. Of Ohio v. Betts, 492 U.S. 158 (1989).............12

Rubin v. United States, 449 U.S. 424, 430 (1981)................................8 

United States v. Hamkin, 607 F. 2d 611 (3d Cir. 1979)........................10 

United States v. Kokinda, 497 U.S. 720............................................7

United States v. McGoff, 831 F.2d 1071, 1077 (D.C. Cir. 1987)...............7 

Statutes

Section 441a, Federal Election Campaign Act.............................passim 

Section 441f, Federal Election Campaign Act.............................passim 

18 U.S.C. Section 1001............................................................4 

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INTEREST OF AMICUS CURIAE 

AMERICAN CIVIL RIGHTS UNION 

The American Civil Rights Union (ACRU) is a nonpartisan legal 

policy organization dedicated to defending all constitutional rights, not just 

those that might be politically correct or fit a particular ideology. It was 

founded in 1998 by long time Reagan policy advisor and architect of modern 

welfare reform Robert B. Carleson, and since then has filed amicus curiae 

briefs on constitutional law issues in cases all over the country. 

Those setting the organization’s policy as members of the Policy 

Board are former U.S. Attorney General Edwin Meese III; Pepperdine Law 

School Dean Kenneth W. Starr; former Assistant Attorney General for Civil 

Rights William Bradford Reynolds; John M. Olin Distinguished Professor of 

Economics at George Mason University Walter Williams; former Harvard 

University Professor, Dr. James Q. Wilson; Ambassador Curtin Winsor, Jr.; 

and Dean Emeritus of the UCLA Anderson School of Management J. 

Clayburn Laforce. 

The ACRU’s interest in this case is to ensure full Constitutional and 

legal protections for criminal defendants, which is fundamental to ensuring 

individual liberty. All parties have consented to the filing of this brief. 

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SUMMARY OF ARGUMENT 

The government and its supporting amici have fundamentally 

misconceived the decision of the Court below, and the argument of the 

Defendant Pierce O’Donnell in this case. The undisputed facts based on the 

Indictment clearly establish beyond argument that the Defendant O’Donnell 

did not commit any act in violation of the plain language of Section 441f of 

the Federal Election Campaign Act (“FECA”). The Court below recognized 

this, and, therefore, properly dismissed Counts I and II of the Indictment, 

which were based on supposed violations of Section 441f. 

This does not leave any loophole in FECA, as the overreaching 

government and amici so repetitiously contend. Section 441a expressly 

prohibits the conduct they are alarmed about, banning contributions made 

“indirectly...including contributions which are in any way...directed 

through an intermediate or a conduit.” It also requires disclosure of such 

contributions to prevent evasion of the prohibition. The government simply 

erred in charging the Defendant under Section 441f, a felony provision that 

does not apply to the Defendant’s actions, instead of under Section 441a, 

which is only a misdemeanor provision involving lesser penalties. 

Consequently, the policy arguments of the government and its amici 

are without merit, and in any event cannot be used to railroad the Defendant 

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into prison for a crime he did not commit. The plain text of the statute 

settles this case. Allowing criminal prosecution and imprisonment for 

conduct outside the text of a criminal statute would violate the fundamental 

rule of law, and transgress the fundamental rights and liberties of American 

citizens, as in a rogue, authoritarian state. 

Actual legislative history involving Section 441f is scant and not 

determinative, and in any event cannot serve to rewrite plain textual 

language. Prior case law also does not support the government and its amici, 

and must bow to the plain text in any event as well. Agency interpretation 

contrary to the plain text is also irrelevant. 

STATEMENT OF FACTS

The government alleged in Counts I and II of the Indictment of 

Defendant Pierce O’Donnell that several individuals other than O’Donnell 

made contributions to a Presidential campaign political committee, 

denominated EFP, which were solicited by O’Donnell. The Indictment 

further alleged that subsequently Defendant O’Donnell reimbursed those 

contributors for the amounts they contributed. 

The contributors made the contributions in their own names. The 

Indictment does not allege facts showing that Defendant O’Donnell himself 

made any contributions to the Presidential campaign political committee. It 

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alleges that O’Donnell later made payments to the actual contributors 

reimbursing them for their contributions. 

Defendant O’Donnell moved to dismiss the Indictment on March 16, 

2009, on the grounds that it failed to state a violation of law. In an opinion 

issued on June 8, 2009, District Court Judge S. James Otero granted the 

Defendant O’Donnell’s motion as to Counts I and II of the Indictment, 

which were based on supposed violations of Section 441f of FECA. Judge 

Otero ruled, “Section 441f is unambiguous and does not prohibit soliciting 

and reimbursing contributions.” (GER 5)1

. 

But Judge Otero denied the motion as to Count III, which he found 

sufficiently alleged a violation of 18 U.S.C. Section 1001. The government 

then filed this appeal. 

ARGUMENT 

I. THE DEFENDANT O’DONNELL DID NOT COMMIT THE 

VIOLATION CHARGED BASED ON THE FACTS 

ALLEGED IN THE INDICTMENT. 

Counts 1 and 2 of the Indictment charge the Defendant Pierce 

O’Donnell with violating Section 441f of the Federal Election Campaign 

Act (“FECA”). Section 441f states, 

 

1

 “GER” refers to the government’s excerpts of record and is followed by the 

page number. 

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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. 

2 U.S.C. Section 441f. The undisputed facts show that the Defendant 

O’Donnell did not commit any act that violates the plain language of this 

text. 

O’Donnell did not “make a contribution in the name of another 

person.” The specific facts alleged in the Indictment are that O’Donnell 

reimbursed others for contributions that they made. O’Donnell himself did 

not make any actual contribution to the Presidential campaign committee 

EFP, and there is not even an allegation to the contrary. 

The Defendant O’Donnell did not “knowingly permit his name to be 

used to effect such a contribution,” and again there is not even an allegation 

to that effect. The Defendant O’Donnell also did not “knowingly accept a 

contribution made by one person in the name of another.” 

Consequently, there can be no dispute that the Defendant O’Donnell 

did not violate Section 411f. The District Court below recognized these 

arguments grounded in the plain text of the statute, and, therefore, properly 

dismissed Counts I and II of the Indictment, which were based on supposed 

violations of Section 411f. 

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The government and its amici erroneously argue that the Court’s 

ruling leaves an enormous loophole in the statutory framework for campaign 

finance regulation, as the contribution limits and reporting requirements 

allegedly could be evaded by wealthy individuals soliciting and reimbursing 

contributions made by others. But Section 441a of FECA expressly bans 

contributions made “indirectly...including contributions which are in any 

way...directed through an intermediate or a conduit.” Section 441a also 

requires disclosure and reporting of any such indirect contributions. 

The government, however, brought its Indictment against the 

Defendant O’Donnell under Section 441f, a felony provision which includes 

penalties of imprisonment. But that provision does not prohibit the 

Defendant’s conduct. That is why the Court below correctly dismissed the 

two counts relating to Section 441f. The provision that prohibits the conduct 

that the government and its amici raise is Section 441a, which provides only 

for misdemeanor penalties. Because of Section 441a, the hypothetical 

loophole that the government and amici raise does not exist. 

It is fundamental to the basic liberties of our society that the 

government not be allowed to stretch and twist the plain language of 

criminal statutes to conduct not covered by the actual text of the statute. 

Indeed, that is fundamental to the very rule of law. Such government action 

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would transgress the fundamental rights and liberties of American citizens, 

as in a rogue, authoritarian state, rather than an enlightened liberal society. 

As the Court reminds us in McNally v. United States, 483 U.S. 350, 359-360 

(1987), when considering criminal allegations, “There are no constructive 

offenses; and before one can be punished, it must be shown that his case is 

plainly within the statute.” Accord: Fasulo v. United States, 272 U.S. 620 

(1926); United States v. McGoff, 831 F.2d 1071, 1077 (D.C. Cir. 

1987)(describing as a “bedrock principle that in a free country citizens who 

are potentially subject to criminal sanctions should have clear notice of the 

behavior that may cause sanctions to be visited upon them.”). 

This is all the more so when the criminal statute regulates what is 

otherwise constitutionally protected activity. Campaign financing and 

contributions are core political activities essential to our democracy, and 

protected by the First Amendment. Criminal violations related to such 

activities must be narrowly and literally construed to protect essential basic 

liberties, and avoid any chilling effect on the exercise of such liberties. See 

Buckley v. Valeo, 424 U.S. 1 (1976); United States v. Kokinda, 497 U.S. 720 

(1990); Emily’s List v. FCC, 581 F. 3d 1 (D.C. Cir. 2009); AFL-CIO v. FEC, 

333 F.3d 168 (D.C. Cir. 2003). 

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If the government and its amici believe the penalties for violating 

Section 441a are not sufficient, they are free to seek a remedy from

Congress. But they cannot be allowed to railroad a Defendant into prison 

for a crime he didn’t commit based on their policy arguments for such 

heightened penalties. 

II. THE PLAIN TEXT OF THE STATUTE SETTLES THIS CASE. 

This Court set the standard for statutory interpretation in Caminetti v. 

United States, 242 U.S. 470 (1917), saying, 

[T]he meaning of a statute must, in the first instance, be sought

in the language in which the act is framed, and if that is 

plain,...the sole function of the courts is to enforce it according 

to its terms. 

242 U.S. at 485. In other words, the plain meaning of the text controls. 

Perrin v. United States, 444 U.S. 37, 42 (1979)(“[W]ords [in a statute] will 

be interpreted as taking their ordinary, contemporary, common meaning.”). 

The Court added in Rubin v. United States, 449 U.S. 424, 430 (1981), 

“When we find the terms of the statute unambiguous, judicial inquiry is

complete....” Accord: Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 

450 (2002), (“The inquiry into the meaning of the statute ceases” if the text 

is plain and unambiguous.). 

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As discussed above, the Defendant O’Donnell did not commit any act 

that violates the plain language of Section 441f, and so Counts I and II of the 

Indictment were properly dismissed. The plain text of the statute settles the 

matter in this case. Consequently, there is no basis for any further inquiry. 

Nevertheless, the government and its amici resort to legislative history 

to try to rewrite the statute. But even the government concedes that it “has 

found no relevant discussion of now-Section 441f in the 1971 Act’s 

legislative history....” Gov Br 47. The Court below concluded that the 

contemporaneous legislative history only further supported its ruling 

regarding the plain meaning of the statute. GER 5. 

The government and its amici point to supposed legislative history 

that occurred years after Section 441f was adopted. But such postenactment “legislative history” is not a guide to the intended meaning of the 

language when it was adopted. Consumer Prod. Safety Comm’n v. GTE 

Sylvania, Inc., 447 U.S. 102, 117-118 (“The views of a subsequent Congress 

form a hazardous basis for inferring the intent of an earlier one.”). These 

post-enactment citations do not lead to a different conclusion as to the 

meaning of Section 441f in any event. 

The government and its amici discuss considerable case law, but they 

do not produce a single case ruling that Section 441f prohibits 

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reimbursements of contributions. These cases involve at best dicta in regard 

to the issue of whether contribution reimbursements are prohibited by 

Section 441f, with that issue was not even contested. Jama v. ICE, 543 U.S. 

335, 351 n.12 (2005)(Such “dictum settles nothing, even in the court that 

utters it.”); Central Valley Cmty. Coll. v. Katz, 546 U.S. 356, 363 

(2006)(“For the reasons stated by Chief Justice Marshall in Cohens v. 

Virginia, 19 U.S. (6 Wheat.) 264 (1821), we are not bound to follow our 

dicta in a prior case in which the point now at issue was not fully debated.”); 

Cross v. Burke, 146 U.S. 82 (1892); Exp. Group v. Reef Indus., Inc. 54 F.3d 

1466, 1472 (9th Cir. 2004)(dictum has “no binding or precedential impact.”). 

There is no actual holding that Section 441f prohibits reimbursements. 

Amicus Curiae Citizens for Responsibility and Ethics in Washington 

(“CREW”) tells us, “Conspicuously missing from the District Court’s 

discussion of the case law is any mention of the seminal case interpreting the 

language of Section 441f, United States v. Hamkin, 607 F. 2d 611 (3d Cir. 

1979).” CREW Br. 12-13. It turns out that “seminal” discussion is a 

footnote in a dissent involving dicta proclaiming an “inference” that Section 

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441f banned reimbursements, in a case where the majority ruling was on on 

an issue relating to the statute of limitations.

2

Finally, the government and its amici raise FEC advisory opinions and 

regulations, arguing that the agency’s interpretation of the statute deserves 

decisive deference. But the FEC here serves in the role of a prosecutor, 

whose interpretation of criminal statutes is entitled to no deference. In our 

system of ordered liberty, no body may serve as both prosecutor and judge. 

Crandon v. United States,494 U.S. 152, 177 (1990)(Scalia, J.)(“[W]e have 

never thought that the interpretation of those charged with prosecuting 

criminal statutes is entitled to deference.”). 

Even more importantly, when the language of the statute is plain and 

unambiguous, as in this case, any agency interpretation to the contrary is 

irrelevant. As the Court below said regarding the cited agency

interpretations, 

[T]hey do not accord with the plain language of [Section]441f 

read in conjunction with the sections of FECA expressly 

prohibiting “conduit” and “indirect” contributions, as well as 

FECA’s legislative history. Moreover, because the plain 

language, structure, and legislative history of FECA 

 

2

 Government amici Campaign Legal Center and Democracy 21 cite 

McConnell v. FEC, 540 U.S. 93 (2003) as supporting their interpretation that 

Section 411f bans contribution reimbursements. But the Court simply 

recognized there that Section 441f banned parents from making 

contributions in the name of their children, consistently with the plain 

wording of the text and the ruling of the court below.

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demonstrate that “indirect” and “conduit” contributions are 

covered by other FECA sections but not by [Section] 441f, 

deference to the FEC’s interpretation is not warranted. 

GER 7. Accord: Barnhart v. Walton,535 U.S. 212 (2002); Demarest v. 

Manspeaker,498 U.S. 184 (1991); Pub. Employees Ret. Sys. Of Ohio v. 

Betts, 492 U.S. 158 (1989); AFL-CIO v. FEC,177 F. Supp. 2d 48 (D.D.C. 

2001), aff’d on other grounds, 333 F.3d 168 (D.C. Cir. 2005). 

Indeed, as stated at the outset, when the text of the statute is plain, as 

in this case, that settles the matter, and legislative history and even case law 

is irrelevant. McNally v. United States, 483 U.S. 350 (1987). 

CONCLUSION 

For all of the foregoing reasons, the decision of the Court below 

should be affirmed. 

Dated: November 16, 2009 Respectfully submitted, 

 /s/ Peter J. Ferrara 

 Peter J. Ferrara

 American Civil Rights Union 

 1232 Pine Hill Rd. 

 McLean, VA 22101 

 703-582-8466 

 peterferrara@msn.com 

 Counsel for Amicus Curiae 

 American Civil Rights Union 

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Certificate of Compliance Pursuant to Fed. R. Civ. P. 32(a)(7)(C) and 

Circuit Rule 32-1

Pursuant to Fed. R. App. P. 29(d) and 9

th 

Cir. R. 32-1, the attached 

amicus brief is proportionally spaced, has a typeface of 14 points or more 

and contains 2,566 words, which is less than the applicable limit of 7,000 

words. 

/s/Peter J. Ferrara 

Peter J. Ferrara 

AMERICAN CIVIL RIGHTS UNION 

1232 Pine Hill Rd. 

McLean, VA 22101 

 (703) 582-8466 

 Counsel for Amicus Curiae 

 American Civil Rights Union 

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CERTIFICATE OF SERVICE 

I hereby certify that on this 16

th 

day of November, 2009, I 

electronically filed the foregoing BRIEF OF AMICUS CURIAE 

AMERICAN CIVIL RIGHTS UNION IN SUPPORT OF APPELLEE AND 

AFFIRMANCE with the Clerk of the Court for the United States Court of 

Appeals for the Ninth Circuit by using the appellate CM/ECF system. 

I certify that all participants in the case are registered CM/ECF users 

and that service will be accomplished by the appellate CM/ECF system. 

/s/Peter J. Ferrara 

 Peter J. Ferrara 

 AMERICAN CIVIL RIGHTS UNION 

 1232 Pine Hill Rd. 

 McLean, VA 22101 

(703) 582-8466 

Counsel for Amicus Curiae 

 American Civil Rights Union 

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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. 

_________________________ 

On Appeal from the United States District Court 

for the Central District of California 

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

Hon. S. James Otero, United States District Judge 

__________________________ 

APPEARANCE OF AMICUS CURIAE 

AMERICAN CIVIL RIGHTS UNION 

IN SUPPORT OF APPELLEE 

AND AFFIRMANCE 

_________________________ 

 Peter Ferrara 

 American Civil Rights Union 

 1232 Pine Hill Rd. 

 McLean, VA 22101 

 703-582-8466 

 peterferrara@msn.com 

 Counsel for Amicus Curiae 

 American Civil Rights Union 

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APPEARANCE OF PROSPECTIVE AMICUS CURIAE 

The American Civil Rights Union enters its appearance as Amicus 

Curiae in support of appellee, seeking affirmance, and will file its brief 

amicus curiae on the filing deadline for such a brief, Monday, October 16, 

2009. All parties have consented to the filing of this brief. 

/s/Peter Ferrara 

Peter Ferrara 

American Civil Rights Union 

251 Northampton St., Apt. 5 

Easton, PA 18042 

(703-582-8466) 

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