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 

______________________ 

PETITION FOR PANEL OR EN BANC REHEARING OF 

DEFENDANT-APPELLEE PIERCE O’DONNELL

______________________ 

 GEORGE J. TERWILLIGER III 

 DANIEL B. LEVIN

 WHITE & CASE LLP 

 701 Thirteenth Street, NW 

 Washington, DC 20005 

 Telephone: (202) 626-3628 

 Facsimile: (202) 639-9355 

 E-mail: gterwilliger@whitecase.com 

 

 Attorneys for Defendant-Appellee 

 Pierce O’Donnell

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TABLE OF CONTENTS

I. Introduction............................................................................................ 1 

II. Argument ................................................................................................ 3 

A. The Panel Overlooks Material Points of Fact and Law in 

Concluding That Section 441f Prohibits Reimbursements. .................. 3 

B. The Panel’s Analysis Demonstrates That the Statute Is, at Best, 

Ambiguous and Thus Due Process Principles and the Rule of Lenity 

Required Affirmance. ............................................................................... 9 

C. The Panel’s Conclusion That the Indictment Was Sufficient Was 

Based on a Mistake Regarding the Indictment’s Language and 

Ignores the Government’s Concession That There Were No 

Advancements.......................................................................................... 12 

III. Conclusion ......................................................................................... 16 

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TABLE OF AUTHORITIES 

Supreme Court of the United States 

Buckley v. Valeo, 424 U.S. 1 (1976)..................................................................11, 12 

Cleveland v. United States, 531 U.S. 12 (2000) ........................................................9

Evans v. United States, 504 U.S. 255 (1992).......................................................9, 10 

Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005)....................10 

Hamling v. United States, 418 U.S. 87 (1974) ................................................7, 8, 13 

Holder v. Humanitarian Law Project, No. 08-1498 (U.S. June 21, 2010) ...........6, 7 

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 

523 U.S. 26 (1998)................................................................................................4 

McNally v. United States, 483 U.S. 350 (1987).......................................................11 

Randall v. Sorrell, 548 U.S. 230 (2006) ..................................................................12 

Russell v. United States, 369 U.S. 749 (1962).........................................................13 

Russello v. United States, 464 U.S. 16 (1983)...........................................................6 

Scales v. United States, 367 U.S. 203 (1961) ............................................................7 

Skilling v. United States, No. 08-1394 (U.S. June 24, 2010)...............................9, 11 

TRW Inc. v. Andrews, 534 U.S. 19 (2001).............................................................4, 6 

United States v. Bass, 404 U.S. 336 (1971).............................................................11 

United States v. Kokinda, 497 U.S. 720 (1990).......................................................11 

United States v. Santos, 128 S. Ct. 2020 (2008)......................................................11 

Village of Schaumburg v. Citizens for a Better Env’t, 

444 U.S 620 (1980).............................................................................................12 

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United States Courts of Appeals 

Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972)..........................................12

Cleveland v. City of Los Angeles, 420 F.3d 981 (9th Cir. 2005)...............................8 

Cooper v. Fed. Aviation Admin., 596 F.3d 538 (9th Cir. 2010) ..............................10 

Padash v. Immigration and Naturalization Serv., 

358 F.3d 1161 (9th Cir. 2004) ..............................................................................4 

United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999)...........................................15 

United States v. Smith, 155 F.3d 1051 (9th Cir. 1998)............................................. 8 

United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993)....................................10 

United States v. Wuco, 535 F.2d 1200 (9th Cir. 1976)......................................13, 15 

Statutes 

2 U.S.C. § 431(8)(a) (2000).......................................................................................8 

2 U.S.C. § 437g(d) (Supp. II 2000) .....................................................................9, 16 

2 U.S.C. § 441a(a)(8) (2000) ........................................................................... passim

2 U.S.C. § 441b(b)(2) (Supp. II 2000).......................................................................7 

2 U.S.C. § 441c(a)(1) (2000) .....................................................................................7 

2 U.S.C. § 441e(a)(1) (Supp. II 2000) .......................................................................7 

2 U.S.C. § 441f (Supp II 2000)........................................................................ passim

Federal Election Campaign Act Amendments of 1976, 

Pub. L. No. 94-283, § 102(b), 90 Stat. 475 (1976)...............................................8 

Federal Election Campaign Act Amendments of 1979, 

Pub. L. No. 96-187, § 101, 93 Stat. 1339 (1980) .................................................8 

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Federal Rules & Regulations 

Fed. R. Crim. P. 7(c)(1) ...........................................................................................13 

11 C.F.R. § 110.1(b)(6)............................................................................................14 

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I. Introduction 

The District Court dismissed an Indictment charging that Defendant, a 

lawyer in California practice, violated Section 441f of the Federal Election 

Campaign Act (“FECA”), which provides that “[n]o person shall make a 

[campaign] contribution in the name of another person,” because it determined that 

the plain language of Section 441f did not prohibit reimbursement of others who 

made contributions with their own funds in their own names.1

 The offense conduct 

alleged in the Indictment was that third parties made contributions, in their own 

names, and that Defendant subsequently reimbursed them. 

The District Court also determined that reading Section 441f to prohibit 

reimbursements, as the government contended, would conflict with FECA Section 

441a(a)(8), which allows and regulates conduit contributions by setting limits on 

individual contributions and requires conduit contributors to report the identity of 

the original source of the funds. 2 U.S.C. § 441a(a)(8). Independent of Section 

441f, there are criminal penalties for violating Section 441a(a)(8). 

A panel of this Court reversed the District Court’s determinations, holding 

broadly “that [Section 441f] prohibits a person from providing money to 

others to donate to a candidate for federal office in their own names, when in 

reality they are merely ‘straw donors.’” Op. at 8695 (emphasis added). 

 

1

 “Section 441f” refers to 2 U.S.C. § 441f (Supp II 2000). 

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This panel’s opinion warrants rehearing or en banc review because it 

constitutes an impermissible judicial amendment of a criminal statute, relying on 

elements of the crime found nowhere in the statutory text, and its ruling rests on 

mistakes of law and fact. The panel’s opinion ignores the statutory text, 

established principles of statutory construction, and renders other FECA provisions 

superfluous. Its ruling that the statute “unambiguously” prohibits reimbursement 

of campaign contributions made by others using their own true names is belied by 

the panel’s labored discussion of statutory construction, and its conclusion that the 

rule of lenity therefore does not apply is error. 

Contrary to the panel’s express holding, Section 441f makes no reference to 

providing funds to other persons at any time. Indeed, its express prohibition is 

directed only at the conduct of persons providing funds to a campaign 

committee—that is, making a contribution. It simply forbids doing so in or using 

the name of another person. 

Second, the panel’s conclusion that Section 441f’s proscription is 

“unambiguous,” and thus the rule of lenity does not apply, is contradicted by the 

panel’s own analysis, which relies on interpretive tools only to be used when a 

statute is ambiguous. This holding runs afoul of two fundamental constitutional 

guarantees: (1) the First Amendment protection of political speech requiring 

narrow restrictions on campaign finance activities; and (2) the Fifth Amendment 

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due process prohibition of criminal punishment under statutes that do not clearly 

give notice that the challenged conduct is criminal. 

Third, the panel’s conclusion that the Indictment is not defective is based, in 

part, on a mistake of fact: the panel addresses advancements, but only 

reimbursements are at issue. The panel’s decision is also based on a mistake of 

law since, as a matter of law, the contributions were complete when the donors 

relinquished control of them, before Defendant’s alleged reimbursements occurred. 

Further, the panel’s opinion does not take cognizance of the express allegations in 

the Indictment that allege only “contributions” by persons other than Defendant, 

and there is no dispute that those persons made contributions only in their own 

names. Finally, even if the panel decision were correct in its interpretation of 

Section 441f, its conclusion on the sufficiency of the Indictment would still be 

erroneous. The Indictment fails to allege that Defendant had the requisite 

knowledge to violate Section 441f because it does not allege that Defendant knew, 

or made an agreement with the contributors, that the contributors would not report 

him as the original source of the funds. 

II. Argument 

A. The Panel Overlooks Material Points of Fact and Law in 

Concluding That Section 441f Prohibits Reimbursements. 

 In addition to ignoring the plain language of the text, the panel erred by 

interpreting Section 441f contrary to principles of statutory construction. This 

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error in interpreting a criminal statute regulating core First Amendment conduct 

warrants rehearing, either by the panel or en banc. 

 Section 441f contains a clear and simple proscription: “No person shall 

make a contribution in the name of another person . . .” 2 U.S.C. § 441f. The 

statutory text does not address reimbursing another person’s federal campaign 

contribution. The panel, however, concluded that Section 441f “unambiguously” 

prohibits what the panel terms “straw donor contributions.”2

 Op. at 8701. 

 The interpretation of a statutory provision requires not only acceptance of 

the text’s plain language, it must account for a statute “in all its parts,” including 

the impact of an interpretation on related provisions. Lexecon Inc. v. Milberg 

Weiss Bershad Hynes & Lerach, 523 U.S. 26, 36 (1998); Padash v. Immigration 

and Naturalization Serv., 358 F.3d 1161, 1170 (9th Cir. 2004) (“We must analyze 

the statutory provision in question in the context of the governing statute as a 

whole, presuming congressional intent to create a coherent regulatory scheme.”). 

Various sections of the FECA must be construed in light of each other, so that “no 

clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. 

Andrews, 534 U.S. 19, 31 (2001) (internal citations and quotations omitted). 

 

2

 Although the panel opinion describes such contributions as “straw donor 

contributions,” that term appears nowhere in the text of the statute or the 

Indictment. 

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 The panel’s interpretation fails to adequately consider Section 441a(a)(8), 

which states: 

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. 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) (emphasis added). Section 441a(a)(8) addresses the conduct 

alleged in the Indictment: exceeding the individual contribution limits through 

“indirect” contributions by reimbursing “conduit” contributors. Unlike Section 

441a(a)(8), Section 441f does not prohibit making contributions “directly or 

indirectly,” and does not refer to “contributions which are in any way . . . directed 

through an intermediary or conduit.” Rather, the text of Section 441f only 

prohibits a person from making a contribution using a false name, not reimbursing 

a contribution made by another in his or her own name.3

 

3

 That the panel’s sweeping holding can not be squared with Section 441a(a)(8) is 

illustrated by a simple example. If A desires to provide $1,000 each to eleven 

persons to contribute to eleven different campaigns in their own names, and does 

so by reimbursing their contributions, A’s conduct is perfectly lawful; indeed, it is 

constitutionally-protected activity. If the contributors failed to report A as the 

“original source” of the funds, and/or if A exceeded the annual limit for individual 

contributions, that conduct would violate the requirements of Section 441a(a)(8) 

and be punishable as crimes. But the mere act of reimbursing, or for that matter 

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Sections 441f and 441a(a)(8) must be interpreted so that Section 

441a(a)(8)’s use of “directly or indirectly” or “in any way . . . directed through an 

intermediary or conduit” is not superfluous. TRW Inc., 534 U.S. at 31; see also

Russello v. United States, 464 U.S. 16, 23 (1983) (“[I]t is generally presumed that 

Congress acts intentionally and purposefully in the disparate inclusion and 

exclusion.”) (quotation marks and citation omitted). Congress’s use of different 

language in different statutory provisions demonstrates congressional intent that 

the provisions have different meanings. Holder v. Humanitarian Law Project, No. 

08-1498, Slip Op. at 11-12 (U.S. June 21, 2010). The panel opinion, in contrast, 

holds that the absence of “directly or indirectly” in Section 441f and its presence in 

Section 441a(a)(8) does not “indicate an intention to exclude . . . application” of 

those words in the former. Op. at 8703. Under that reasoning, however, every 

usage in the FECA of “directly or indirectly” or similar phrases would be 

unnecessary, and thus superfluous, because both direct and indirect contributions 

would already be included in the term “contributions.” Indeed, the panel’s 

decision renders not only much of Section 441a(a)(8) superfluous, but also the 

 

advancing, funds contributed by others using their own names is not a crime if the 

reporting and giving limits are observed. Under the panel holding, however, this 

conduct (“providing money to others to donate to a candidate for federal office 

in their own names, when in reality they are merely ‘straw donors’”) would be 

a felony under Section 441f. Op. at 8695 (emphasis added). Clearly, the statute 

can not be properly construed to prohibit in one part what it allows in another. 

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“directly or indirectly” language in additional sections of the FECA.4 This flies in 

the face of the requirement that courts give meaning to every word in a statute, and 

avoid interpretations that result in creating superfluous language. 

Additionally, the panel concedes 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.” 

Op. at 8700. Yet, it identifies no statutory basis for the distinction, contrary to the 

rule that interpretation of a statute must be based on its words. Courts may not 

revise the language or “pervert[] the purpose of a statute.” Humanitarian Law 

Project, No. 08-1498, Slip Op. at 12 (quoting Scales v. United States, 367 U.S. 

203, 211 (1961)).5

 

4

 The FECA uses “directly or indirectly” in other provisions describing 

contributions and payments. See 2 U.S.C. § 441b(b)(2) (Supp. II 2000) 

(prohibiting “any direct or indirect payment, distribution, loan, advance, deposit, or 

gift of money, or any services, or anything of value” from corporations, banks, and 

labor organizations to a campaign); 2 U.S.C. § 441e(a)(1) (Supp. II 2000) 

(prohibiting foreign nationals from making contributions “directly or indirectly”); 

2 U.S.C. § 441c(a)(1) (2000) (prohibiting government contractors from “directly or 

indirectly . . . mak[ing] any contribution of money or other things of value” to 

political parties, committees, or candidates). The opinion’s analysis would 

likewise render portions of those provisions superfluous. 

5

 The panel’s construct also results in the anomalous circumstance that whether an 

original source committed a crime would depend only on whether the conduit 

fulfilled his or her obligation to identify and report the original source. Even if the 

conduit’s action could be determinative, this Indictment is still defective because it 

alleges no facts upon which the grand jury could have based its allegation that 

Defendant violated Section 441f and because it provides him no notice of that 

element of the crime. See GER 15-18; Hamling v. United States, 418 U.S. 87, 117-

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Finally, the entirety of the panel’s reasoning turns on its resort to a 

dictionary definition to redefine “contribution” by expanding it to include an 

antecedent promise to reimburse a contribution. Op. at 8699. Revision of the 

statute is error because the term “contribution” is defined in it. 2 U.S.C. § 

431(8)(a) (2000); see United States v. Smith, 155 F.3d 1051, 1057 (9th Cir. 1998) 

(“When . . . the meaning of a word is clearly explained in a statute, courts are not 

at liberty to look beyond the statutory definition.”); see also Cleveland v. City of 

Los Angeles, 420 F.3d 981, 989 (9th Cir. 2005) (resort to a dictionary definition is 

only appropriate if the statute does not define the term). Moreover, the panel’s 

construct depends on the allegation that Defendant, by informing the contributors 

that he would reimburse them, “agreed to make conduit contributions . . . that is, 

contributions in the names of others.” Op. at 8709. This is wrong as a matter of 

law because promises or pledges are not “contributions.” See 2 U.S.C. § 

431(8)(a).6

 

18 (1974) (holding that an indictment must include a set of facts that set forth all 

the elements necessary to constitute the alleged crime).

6

 Congress could have included a promise or agreement to pay as part of the 

definition of “contribution.” To the contrary, Congress amended the FECA in 

1980 to remove a promise or agreement from the definition of contribution. 

Compare Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-

283, § 102(b), 90 Stat. 475, 478 (1976) (amending definition of contribution to 

include “a written contract, promise, or agreement”), with Federal Election 

Campaign Act Amendments of 1979, Pub. L. No. 96-187, § 101, 93 Stat. 1339, 

1340 (1980) (amending the definition of contribution and removing that language). 

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Unlike the panel’s approach, interpreting Section 441f’s plain language to 

reach only “false name” contributions gives effect to all related provisions in the 

statute, results in no logical inconsistencies, and thus the panel’s interpretation is 

error in light of relevant principles of statutory interpretation.7

B. The Panel’s Analysis Demonstrates That the Statute Is, at Best, 

Ambiguous and Thus Due Process Principles and the Rule of 

Lenity Required Affirmance. 

 After 15 pages of statutory construction, the panel concludes that the statute 

is unambiguous and then eschews analysis of the rule of lenity. Op. at 8707-08. 

The panel’s failure to apply the constitutionally-mandated rule of lenity to a statute 

that is, at best, ambiguous is an error of law on an issue of exceptional importance, 

meriting panel rehearing or rehearing en banc. See, e.g., Skilling v. United States, 

No. 08-1394, Slip. Op. at 46 (U.S. June 24, 2010) (“ambiguity concerning the 

ambit of criminal statutes should be resolved in favor of lenity”) (quoting 

Cleveland v. United States, 531 U.S. 12, 25 (2000)); Evans v. United States, 504 

U.S. 255, 289 (1992) (Thomas, J. dissenting) (noting that rule of lenity serves 

“vitally important functions” of providing notice of what law proscribes and 

 

7

 The panel opinion references (and several amici opined) that upholding the 

district court would result in a troubling loophole in the statute and frustrate 

congressional objectives for campaign contribution transparency. Op. at 8705-06; 

see, e.g., FEC Br 21-23. It would do no such thing because the conduct alleged in 

the Indictment would still run afoul of criminal provisions enforcing individual 

contribution limits and punishing failure to disclose the original source of any 

conduit contribution. See 2 U.S.C. § 441a(a)(8); 2 U.S.C. § 437g(d) (Supp. II 

2000). 

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ensuring that “legislatures and not courts . . . define criminal activity”); see also 

United States v. Weitzenhoff, 35 F.3d 1275, 1296 (9th Cir. 1993) (Kleinfeld, J., 

dissenting from order rejecting suggestion for rehearing en banc) (“The category of 

malum prohibitum, or public welfare offenses, makes the rule of lenity especially 

important, most particularly for felonies, because persons of good conscience may 

not recognize the wrongfulness of the conduct when they engage in it.”). 

The conclusion that the statute unambiguously proscribes the charged 

conduct is untenable in light of the panel’s own discussion. Its reliance on 

statutory interpretation tools belies its conclusion that the statute is unambiguous. 

See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 568 (2005) 

(“The authoritative statement is the statutory text, not the legislative history or any 

other extrinsic material. Extrinsic materials have a role in statutory interpretation 

only to the extent they shed a reliable light on the enacting Legislature’s 

understanding of otherwise ambiguous terms.”). The panel also addresses the 

statute’s legislative history, see Op. at 8705, a step this court has held is 

appropriate only where a court deems a statute to be ambiguous. Cooper v. Fed. 

Aviation Admin., 596 F.3d 538, 547 (9th Cir. 2010). Further, the opinion’s 

necessary reliance on a dictionary definition of a key statutory term, Op. at 8699, 

belies the conclusion that the statute is unambiguous. 

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 The Supreme Court has stated that “when there are two rational readings of a 

criminal statute, one harsher than the other, we are to choose the harsher only when 

Congress has spoken in clear and definite language.” McNally v. United States, 

483 U.S. 350, 359-60 (1987). Due process principles require that a criminal statute 

clearly proscribe certain conduct before the government may punish a person for 

engaging in that conduct. Id. at 360. More specifically, the rule of lenity, 

grounded in these due process principles, requires that ambiguities be resolved in 

favor of Defendant: “Under a long line of our decisions, the tie must go to the 

defendant. The rule of lenity requires ambiguous criminal laws to be interpreted in 

favor of the defendants subjected to them. . . . We interpret ambiguous criminal 

statutes in favor of defendants, not prosecutors.” United States v. Santos, 128 S. 

Ct. 2020, 2025, 2028 (2008) (plurality op.) (citations omitted); United States v. 

Bass, 404 U.S. 336, 347 (1971); see also Skilling, No. 08-1394, Slip. Op. at 46. 

The due process imperative of precision in criminalizing campaign finance 

activities is heightened because Section 441f’s proscription addresses otherwise 

constitutionally-protected political activity. United States v. Kokinda, 497 U.S. 

720, 725 (1990) (“Solicitation is a recognized form of speech protected by the First 

Amendment.”) (citations omitted). Associating with others for purposes of 

financially supporting an election campaign involves core First Amendment 

associational interests, and providing financial support to a candidate and a 

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campaign are forms of protected political speech. Buckley v. Valeo, 424 U.S. 1, 

15, 24-25 (1976). Thus, control and limitation of political contributions 

“‘implicate fundamental First Amendment interests,’ namely, the freedoms of 

‘political expression’ and ‘political association.’” Randall v. Sorrell, 548 U.S. 230, 

246 (2006) (plurality op.) (quoting Buckley, 424 U.S. at 15, 23); see Village of 

Schaumburg v. Citizens for a Better Env’t, 444 U.S 620, 633 (1980) (“Our cases 

long have protected speech even though it is in the form of . . . a solicitation to pay 

or contribute money.”) (alterations to original and internal quotation marks 

omitted). “When First Amendment interests are at stake, the Government must use 

a scalpel, not an ax.” Bursey v. United States, 466 F.2d 1059, 1088 (9th Cir. 

1972). Any ambiguity in a statute criminalizing such conduct must be resolved in 

favor of Defendant to avoid a chilling effect on protected speech. Buckley, 424 

U.S. at 40-41, 77-78. The panel erred by failing to analyze Section 441f pursuant 

to relevant First Amendment and due process principles.

C. The Panel’s Conclusion That the Indictment Was Sufficient Was 

Based on a Mistake Regarding the Indictment’s Language and 

Ignores the Government’s Concession That There Were No 

Advancements. 

Finally, the panel’s conclusion that the Indictment is sufficient conflicts with 

governing Supreme Court precedent and overlooks other pertinent points of law 

and fact, and thus warrants rehearing. 

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For an indictment to be sufficient, it must include “a plain, concise, and 

definite written statement of the essential facts constituting the offense charged.” 

Fed. R. Crim. P. 7(c)(1). Although an indictment may track the language of a 

statute, it must also include a statement of facts and circumstances that inform the 

defendant of the specific offense charged. Hamling v. United States, 418 U.S. 87, 

117-18 (1974); Russell v. United States, 369 U.S. 749, 764 (1962). When 

determining the sufficiency of an indictment, “[i]t is the statement of facts in the 

[indictment], rather than the statutory citation, that is controlling.” United States v. 

Wuco, 535 F.2d 1200, 1202 n.1 (9th Cir. 1976). 

 Here, the Indictment quotes the language of the statute in alleging that 

Defendant made contributions in the names of other persons, but factually states 

that Defendant promised to and did reimburse others who had made completed 

contributions in their true names. GER 15-18. The Indictment never factually 

alleges that Defendant made any contributions. The panel opinion concedes that 

allegations that Defendant “reimbursed the contributions of others . . . alone might 

not clearly state a legal violation,” but nevertheless concludes that the Indictment is 

sufficient because it also states that Defendant “agreed to make conduit 

contributions . . ., that is, contributions in the names of others.” Op. at 8709. For 

two reasons, the panel’s conclusion warrants rehearing. 

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First, the panel misapprehended the law in determining that a criminal act by 

Defendant could occur after the conduit contributors made their contributions. Op. 

at 8700-01 (“When a defendant arranges to have an intermediary deliver a gift and 

promises reimbursement, the offense will at least have begun at the moment the 

contribution arrives at the campaign.”). The text of Section 441f expressly 

circumscribes the offense to the occurrence of “mak[ing] a contribution.” 

Implementing regulations make clear that a contribution is “made” when the donor 

“relinquishes control over the contribution.” 11 C.F.R. § 110.1(b)(6). As a result, 

the alleged “making” of a “contribution” was complete before any alleged 

reimbursement occurred. 

Further, although the panel refers throughout its opinion to “advancements,” 

see Op. at 8697, 8701, 8707, the Indictment does not factually allege that 

Defendant ever made any such advancements. GER 15-18. At oral argument, the 

government clarified that although the Indictment used the statutory language of 

both advancements and reimbursements, in the actual scheme “[t]he individuals 

provide[d] the money and Defendant reimburse[d] them.” Hr’g Tr. 8. Thus, 

allegations of reimbursements alone do not state a violation of the statute because 

they are not “making a contribution.”8

 Because the Indictment’s factual allegations 

 

8

 Allegations of reimbursements could potentially state a violation of Section 

441a(a)(8) if other conditions were met, in light of that statute’s application to both 

“direct” and “indirect” contributions. 

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involved only reimbursements of completed contributions, as the government 

conceded at oral argument, the Indictment was deficient and properly dismissed. 

Second, even if the panel’s interpretation of Section 441f were generally 

correct, the Indictment is nonetheless deficient because it does not factually allege 

that Defendant “made contributions” in the names of others. Rather, the factual 

allegations describing the charges repeatedly allege that Defendant and another 

individual solicited others to make contributions, that others “made contributions,” 

and that Defendant thereafter reimbursed those individuals in the amount of their 

contributions. See GER 15-18. 

The panel’s reading of the above-quoted language in isolation improperly 

ignores the relevant explanatory portions of the Indictment. See Wuco, 535 F.2d at 

1202 n.1. Read as a whole, the Indictment failed to recite an element of the crime 

proscribed under Section 441f, and thus was properly dismissed. See United States 

v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999) (“[A]n indictment's complete failure 

to recite an essential element of the charged offense is . . . a fatal flaw requiring 

dismissal of the indictment.”). 

Finally, even if the panel decision were correct in its interpretation of 

Section 441f, its conclusion on the sufficiency of the Indictment would still be 

erroneous. Under the panel’s decision, and as argued by the government, a 

potential defendant who agreed to reimburse, and did reimburse, others for their 

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16

campaign contributions, does not violate Section 441f if the straw donor reports the 

original source of the funds. Op. at 8697 (describing a “straw donor contribution” 

as one in which the straw donor transmits funds in the straw donor’s name); Gov 

Br 46 n.20 (“If a straw donor notifies the candidate/FEC of the original source, 

there is no violation of Section 441f—as there is no contribution in the name of 

another.”). Only knowing violations of Section 441f are crimes. 2 U.S.C. § 

437g(d). Thus, even under the government’s construct and the panel opinion, a 

required factual allegation for a valid Section 441f indictment is knowledge by 

Defendant that the straw donors would not report Defendant as the original source 

of the funds to the campaign committee (and an agreement to do so is an essential 

element of any conspiracy to violate Section 441f). However, the Indictment 

includes no such allegations. See GER 15-18. For this reason alone, even 

assuming the panel’s construction of the statute is correct, dismissal was required 

and rehearing or en banc review is warranted. 

III. Conclusion 

 For the reasons stated above, panel or en banc rehearing is appropriate.

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17

Dated: June 28, 2010 Respectfully submitted, 

 s/ George J. Terwilliger III 

 GEORGE J. TERWILLIGER III 

 DANIEL B. LEVIN

 WHITE & CASE LLP 

 701 Thirteenth Street, NW 

 Washington, DC 20005 

 Telephone: (202) 626-3628 

 Facsimile: (202) 639-9355 

 E-mail: gterwilliger@whitecase.com 

 

Attorneys for Defendant-Appellee 

 Pierce O’Donnell 

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CERTIFICATE OF COMPLIANCE PURSUANT TO 

 CIRCUIT RULES 35-4 AND 40-1 

 Pursuant to Circuit Rules 35-4 and 40-1, I certify that the attached petition 

for panel or en banc rehearing is proportionately spaced, has a typeface of 14 

points or more, and contains 3,965 words, exclusive of the cover, table of contents, 

table of authorities, certificate of counsel, this certificate of compliance, and proof 

of service, according to the word count feature of Microsoft Word used to generate 

this brief. 

s/ George J. Terwilliger III 

GEORGE J. TERWILLIGER III 

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CERTIFICATE OF SERVICE

 I hereby certify that on June 28, 2010, I electronically filed the foregoing 

PETITION FOR PANEL OR EN BANC REHEARING OF DEFENDANTAPPELLEE PIERCE O’DONNELL 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/ George J. Terwilliger III 

GEORGE J. TERWILLIGER III 

WHITE & CASE LLP 

701 Thirteenth Street, NW 

Washington, DC 20005 

Telephone: (202) 626-3628 

Facsimile: (202) 639-9355 

E-mail: gterwilliger@whitecase.com 

Attorney for Defendant-Appellee 

Pierce O’Donnell

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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

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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.

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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). 

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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

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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

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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. 

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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

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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). 

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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. 

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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”

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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. 

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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

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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

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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). 

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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

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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

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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

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