No. 09-50296 

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellant, 

 v. 

PIERCE O’DONNELL, 

 Defendant-Appellee. 

__________________________ 

GOVERNMENT’S OPPOSITION TO DEFENDANT’S PETITION 

FOR PANEL REHEARING AND REHEARING EN BANC 

APPEAL FROM 

THE UNITED STATES DISTRICT COURT 

FOR THE CENTRAL DISTRICT OF CALIFORNIA 

________________________________________ 

ANDRÉ BIROTTE JR. 

 United States Attorney 

 ROBERT E. DUGDALE 

 Assistant United States Attorney 

 Chief, Criminal Division 

 ERIK M. SILBER 

 Assistant United States Attorney 

 Criminal Appeals Section 

 1000 United States Courthouse 

 312 North Spring Street 

 Los Angeles, California 90012 

 Telephone: (213) 894-2231 

 Facsimile: (213) 894-8513 

 E-mail: Erik.Silber@usdoj.gov 

 

 Attorneys for Plaintiff-Appellant 

 UNITED STATES OF AMERICA 

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i 

TABLE OF CONTENTS 

PAGE 

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

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

II HISTORY....................................................3 

III ARGUMENT...................................................7 

A. THE PANEL CORRECTLY HELD THAT DEFENDANT VIOLATED 

 § 441f’s PLAIN WORDING................................7 

B. THE PANEL CORRECTLY DECLINED TO READ DEFENDANT’S 

NONTEXTUAL LIMIT INTO § 441f .........................10 

 C. THE PANEL CORRECTLY RECOGNIZED DEFENDANT’S 

NONTEXTUAL LIMIT WAS INCONSISTENT WITH FECA’S 

PURPOSE..............................................14 

D. THE PANEL CORRECTLY HELD LENITY DID NOT APPLY........18 

 E. THE PANEL CORRECTLY UPHELD THE INDICTMENT’S 

WORDING..............................................19 

IV CONCLUSION...............................................21 

APPENDIX (2 U.S.C. §§ 441f, 431(8)(A)(i), and 441a(a)(8)) 

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ii 

TABLE OF AUTHORITIES 

PAGE(s) 

CASES 

Ali v. Federal Bureau of Prisons, 

 552 U.S. 214 (2008)....................................8, 14 

Almendarez-Torres v. United States, 

 523 U.S. 224 (1998).......................................12 

Barnhart v. Peabody Coal Co., 

 537 U.S. 149 (2003).......................................13 

Barnhart v. Sigmon Coal Co., Inc., 

 534 U.S. 438 (2002).......................................13 

Bartnicki v. Vopper, 

 532 U.S. 514 (2001).......................................16 

Buckley v. Valeo, 

 424 U.S. 1 (1976) (per curiam)............................19 

Burgess v. United States, 

 553 U.S. 124 (2008)........................................9 

 

Carcieri v. Salazar, 

 129 S. Ct. 1058 (2009).....................................9 

City of Columbus v. Ours Garage, 

 536 U.S. 424 (2002)...................................12, 13 

Duncan v. Walker, 

 533 U.S. 167 (2001)...................................12, 13 

FEC v. Democratic Senatorial Campaign Comm., 

 454 U.S. 27 (1981)....................................18, 19 

Goland v. United States, 

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

Lamie v. United States Trustee, 

 540 U.S. 526 (2004).......................................14 

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iii 

TABLE OF AUTHORITIES (CONTINUED) 

PAGE(s) 

CASES 

Maine v. Thiboutot, 

 448 U.S. 1 (1980).........................................11 

McConnell v. FEC, 

540 U.S. 93 (2003), 

overruled in part on other grounds, 

 Citizens United v. FEC, 130 S. Ct. 876 (2010)..............2 

Mujahid v. Daniels, 

 413 F.3d 991 (9th Cir. 2005)...........................2, 19 

Pacheco-Camacho v. Hood, 

 272 F.3d 1266 (9th Cir. 2001).............................19 

Pavelic & LeFlore v. Marvel Entertainment Group, 

 493 U.S. 120 (1989).......................................11 

Picazo v. Alameida, 

 366 F.3d 971 (9th Cir. 2004)..............................20 

Russello v. United States, 

 464 U.S. 16 (1983).................................5, 12, 13 

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

 252 F.3d 1102 (9th Cir. 2001).............................12 

United States v. Hayes, 

 129 S. Ct. 1079 (2009)....................................18 

United States v. Iverson, 

 162 F.3d 1015 (9th Cir. 1998).............................18 

United States v. Lopez-Gonzalez, 

 183 F.3d 933 (9th Cir. 1999)..............................20 

United States v. Monsanto, 

 491 U.S. 600 (1989)...................................11, 14 

United States v. O’Donnell, 

 608 F.3d 546 (9th Cir. 2010)..........................passim 

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TABLE OF AUTHORITIES (CONTINUED) 

PAGE(s) 

CASES 

United States v. Youssef, 

 547 F.3d 1090 (9th Cir. 2008) (per curiam)................12 

Wilderness Soc’y v. United States Fish & Wildlife Serv., 

 353 F.3d 1051 (9th Cir. 2003) (en banc)...................18 

FEDERAL STATUTES 

2 U.S.C. § 431(8)(A)(i)....................................passim 

2 U.S.C. § 437g(d).............................................11 

2 U.S.C. § 441a.........................................9, 10, 11 

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

2 U.S.C. § 441b................................................14 

2 U.S.C. § 441b(c)(2)..........................................12 

2 U.S.C. § 441c................................................14 

2 U.S.C. § 441e................................................14 

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

2 U.S.C. § 441g................................................13 

2 U.S.C. § 441k................................................13 

18 U.S.C. § 591 (1970).........................................14 

18 U.S.C. § 611 (1970).........................................14 

18 U.S.C. § 613 (1970).........................................14 

Pub. Law 107-155, 116 Stat. 106, § 312 (2002)..................17 

Pub. Law 107-155, 116 Stat. 108, § 315 (2002)..................17 

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TABLE OF AUTHORITIES (CONTINUED) 

PAGE(s) 

FEDERAL RULES 

Fed. R. Crim. P. 35(a)(1).......................................1 

Fed. R. Crim. P. 35(a)(2).......................................2 

FEDERAL REGULATIONS 

11 C.F.R. § 110.4(b)(2)(i).....................................18 

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No. 09-50296 

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellant, 

 v. 

PIERCE O’DONNELL, 

 Defendant-Appellee. 

__________________________ 

GOVERNMENT’S OPPOSITION TO DEFENDANT’S PETITION 

FOR PANEL REHEARING AND REHEARING EN BANC 

I 

INTRODUCTION 

Defendant Pierce O’Donnell (“defendant”) secretly 

contributed $26,000 to a presidential candidate by getting 13 

people to purport to contribute in their names, with defendant 

reimbursing or advancing the money. As the Panel recognized, 

defendant thereby violated 2 U.S.C. § 441f’s plain wording: “No 

person shall make a contribution in the name of another person.” 

United States v. O’Donnell, 608 F.3d 546 (9th Cir. 2010). 

Defendant seeks rehearing, but does not suggest the Panel 

created an intra- or inter-circuit conflict. Fed. R. Crim. P. 

35(a)(1). Aside from the district court here, in the nearly 40 

years since Congress passed now-§ 441f, no court has adopted 

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2 

defendant’s interpretation and 16 courts, including the Supreme 

Court and this Court, have at least suggested the Panel’s. (608 

F.3d at 549 n.1; GRB 17-21; McConnell v. FEC, 540 U.S. 93, 232 

(2003) (contributions-by-minors ban unnecessary to protect 

“against corruption by conduit;” noting “scant evidence” of it, 

“[p]erhaps” “result[ing] from sufficient deterrence of such 

activities” by § 441f), overruled in part on other grounds, 

Citizens United v. FEC, 130 S. Ct. 876 (2010); Goland v. United 

States, 903 F.2d 1247, 1251 (9th Cir. 1990) (Section 441f 

“prohibits the use of ‘conduits’ to circumvent” Act’s limits)).1

Moreover, the only issue defendant contends is 

exceptionally important, Fed. R. Crim. P. 35(a)(2), is his 

argument that the use of statutory interpretation tools creates 

ambiguity, requiring lenity. (PFR 9). Defendant’s argument is 

contrary to this Court’s and the Supreme Court’s precedent. It 

also highlights why using scarce en banc resources here is 

misplaced. Even were the statute ambiguous, defendant would not 

prevail. Since 1977, a Federal Election Commission (“FEC”) 

regulation has explained that § 441f prohibits defendant’s 

contributions, and deference to that regulation controls over 

lenity. Mujahid v. Daniels, 413 F.3d 991 (9th Cir. 2005). 

                                                           

1

 “GOB” refers to the opening brief, “AAB” the answering brief, 

“GRB” the reply brief, “GER” the excerpts of record, and “PFR” 

defendant’s petition; each is followed by the page number.

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II 

HISTORY 

The indictment alleges defendant and a co-conspirator 

solicited others to “contribute” to a presidential candidate, 

with defendant advancing or reimbursing the money.2

 (GER 15-18). 

At defendant and his co-conspirator’s direction, 13 people 

purported to contribute $2,000 in their names with defendant 

providing the $26,000. (GER 18). Defendant and his coconspirator collected and gave the money to the candidate. (GER 

16). Defendant was charged, in part, with violating § 441f (GER 

12-19), but the district court (Judge Otero) dismissed those 

counts, relying on statutory context (most notably 

§ 441a(a)(8)), legislative history (not about § 441f), and 

lenity to conclude § 441f did not apply (GER 1-7). This Court 

(Judges Goodwin, Canby, and Fisher) unanimously reversed. 

The Panel first turned to § 441f’s text: “No person shall 

make a contribution in the name of another person.” The Panel 

noted the Federal Election Campaign Act (“FECA”) defined 

“contribution” as “any gift . . . of money . . . made by any 

person for the purpose of influencing” a federal election, 2 

                                                           

2

 Defendant suggests only reimbursements are involved, but the 

indictment alleges the contrary (GER 18), the government did not 

concede this point (Argument 6:50-8:34), and the Panel held 

§ 441f applies to both, making any distinction irrelevant.

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U.S.C. § 431(8)(A)(i). That definition identified “what purpose 

is required” and the gifts here were made for that purpose. 608 

F.3d at 550. The Panel held, however, the definition did not 

identify “who” makes a contribution, so it looked to the 

dictionary definition of “contribute,” which included “to give,” 

connoting “providing from one’s own resources.” Id. With 

straw-donor contributions, “it is the original source who has 

made the gift.” Id. Defendants, thus, violate § 441f if, as 

here, they provide their own money (directly or through an 

intermediary), but not their own names. Id.

The Panel also rejected defendant’s timing argument that 

the contributions were complete before his reimbursements. Id.

at 550-51. Although the Panel suggested defendant’s argument 

“would be troubling” if there was no prior arrangement, here 

because defendant arranged to have intermediaries deliver money 

promising reimbursement and he actually provided reimbursement, 

defendant made contributions. Id. at 551. “Considering the 

plain language of § 441f itself,” the Panel held it prohibited 

defendant’s contributions. Id.

Because context is “relevant to plain meaning,” the Panel 

next considered § 441a(a)(8), on which defendant and the 

district court focused. Id. The Panel noted it used the terms 

“conduit” and “indirectly” whereas § 441f did not, and 

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recognized the Russello presumption: the inclusion of wording 

in one section but omission in another of the same Act is 

generally intentional. Id. at 551-52. The Panel, however, held 

the provisions did not have parallel purposes and structures 

and, “even if the parallels were stronger,” Congress passed 

§ 441f three years before § 441a(a)(8), so the “wording in the 

latter offers little insight into the meaning of the former.” 

Id. at 552. Moreover, the presumption had “limited force” 

“because the language used in § 441f is broad rather than 

specific.” Id. Section 441f did not include “directly,” but 

omit “indirectly,” nor did it specify ways to contribute “while 

omitting ‘conduit.’” Id. Had it done either, the absence of 

the words in § 441a(a)(8) “could indicate an intention to 

exclude” them in § 441f, but no such presumption arose from 

§ 441f’s broad wording. Id. Indeed, the Panel held 

§ 441a(a)(8) “actually undermines [defendant’s] interpretation:” 

(1) it is written such that indirect gifts “are merely 

particular types of contributions, subsumed within the general” 

definition applying to § 441f; and (2) defendant agreed he made 

contributions under § 441a(a)(8), but his same timing argument 

(above) also applied there, meaning, if he made contributions 

under § 441a(a)(8), he also did under § 441f. Id. at 553. 

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6 

The Panel next discussed statutory purpose, noting Congress 

passed § 441f in 1971, when it chose disclosure over 

contribution limits, believing disclosure made limits 

unnecessary. Id. Straw-donor contributions, however, undermine 

transparency “no less than false name contributions.” Id. at 

554. Adopting defendant’s interpretation would have allowed 

straw-donor contributions until Congress passed § 441a(a)(8) in 

1974, and it was “highly unlikely” a Congress focused on 

disclosure would have omitted such contributions, “which were a 

recognized concern.” Id. The Panel also rejected defendant’s 

suggestion that Congress designed § 441a(a)(8) to fix this 

loophole because: (1) Section 441a(a)(8) “served primarily to 

reinstate contribution limits;” (2) “had Congress been concerned 

about a loophole in § 441f, it likely would have amended that 

provision rather than enacting § 441a(a)(8);” and (3) Section 

441a(a)(8)’s reporting requirement applies only to 

intermediaries, not “the principal offender in a straw donor 

scheme,” unlike § 441f, which “properly criminalizes the 

conduct” of both actors. Id. 

The Panel, thus, held “[t]he text, purpose and structure of 

§ 441f” demonstrated it barred defendant’s straw-donor 

contributions. Id. at 555. Because FECA was unambiguous, 

lenity did not apply. Id.

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III

ARGUMENT 

A. THE PANEL CORRECTLY HELD THAT DEFENDANT VIOLATED § 441f’s 

PLAIN WORDING 

The Panel held that defendant violated § 441f’s plain 

wording by contributing $26,000 in 13 other people’s names. 

Defendant argues, however, § 441f is limited to false-name 

contributions. That is, defendant concedes if he handed $100 to 

a candidate and provided his friend’s name (a false name), he 

would violate § 441f. But defendant argues if he, instead, gave 

his friend $100 and directed her to give $100 to the same 

candidate in her name (a so-called straw-donor contribution), he 

would not violate § 441f. In both cases, however, defendant 

contributed to the same candidate, in the same amount ($100), in 

the same name (his friend’s). As the Panel recognized, § 441f 

prohibits both contributions. 

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

contribution in the name of another person.” As is apparent, it 

prohibits a person from: (1) making a contribution, (2) in the 

name of another person. 

Turning to the first requirement, “contribution” includes 

“any gift . . . of money . . . made by any person for the 

purpose of influencing” a federal election, 2 U.S.C. 

§ 431(8)(A)(i), which defendant satisfied by giving $26,000 to 

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elect a presidential candidate. Indeed, it is undisputed 

defendant gave money for that purpose. 608 F.3d at 550. 

Although the Panel recognized § 431(8)(A)(i) identified “what” 

purpose is required, it turned to a dictionary definition 

because it did not address “who” makes a contribution. 

Defendant challenges the use of that definition and argues the 

statute applies only to the person handing money to the 

candidate. (PFR 8, 2). There are three problems with 

defendant’s argument. 

First, the government respectfully disagrees that a 

dictionary is needed. Section 431(8)(A)(i) states “any person” 

who made any gift of money for the purpose of influencing a 

federal election makes a “contribution.” The reference to “any 

person” demonstrates that anyone providing a gift of money for 

the specified purpose (influencing a federal election) makes a 

“contribution.” Ali v. Federal Bureau of Prisons, 552 U.S. 214, 

218-20 (2008) (“any” generally has expansive meaning). As the 

Panel recognized, defendant made such gifts with that purpose, 

608 F.3d at 550, meaning he made “contributions.” For the same 

reason, defendant is wrong to suggest the definition turns on 

how contributions reach the candidate (directly or through an 

intermediary). Whether defendant gave a candidate $100 or a 

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9 

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

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

Second, if § 431(8)(A)(i) does not identify “who” makes a 

contribution, the Panel’s use of the dictionary definition of 

“contribute” is permissible, Carcieri v. Salazar, 129 S. Ct. 

1058, 1064 (2009); Burgess v. United States, 553 U.S. 124, 131 

n.3 (2008), and the result is the same if the meaning of the 

undefined term “gift” is used instead. 608 F.3d at 550 

(“giving” connotes “providing from one’s own resources”). 

Third, defendant conceded he made “contributions” under 

§ 441a. 608 F.3d at 553. Like § 441f, however, § 441a also 

refers to “mak[ing] contributions” and it uses the same 

generally-applicable definition of “contribution” from 

§ 431(8)(A)(i). Because defendant agrees he made 

“contributions” under § 441a, he also made them under § 441f.3

                                                           

3

 Defendant repeats his timing argument: The straw donors made 

completed contributions when they delivered money to the 

candidate, rendering defendant’s separate and later 

reimbursements irrelevant. (PFR 3, 14; AAB 5). But the 

indictment alleges defendant and his co-conspirator delivered 

that money to the candidate, and it charges a single course of 

conduct (not independent acts): Defendant recruited people 

promising reimbursement, the straw donors agreed to “contribute” 

based on the promise, and defendant provided them the money. 

(GER 15-16). Defendant’s argument also lacks textual support in 

FECA: Whether defendant made contributions focused on whether 

he gave money for the required purpose, which he did. Defendant 

finally questions the Panel’s dictum that his timing argument 

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10 

Turning to the second requirement in § 441f, defendant made 

his contributions “in the name of another person,” specifically, 

13 other people. Indeed, it is undisputed that defendant’s name 

was not submitted to the candidate. 608 F.3d at 550. 

Defendant, thus, contributed $26,000 in 13 other people’s 

names, violating § 441f’s straightforward bar that “[n]o person 

shall make a contribution in the name of another person.” 

Defendant has not demonstrated the Panel’s opinion so holding is 

wrong, much less that it created an intra- or inter-circuit 

conflict. 

B. THE PANEL CORRECTLY DECLINED TO READ DEFENDANT’S NONTEXTUAL 

LIMIT INTO § 441f 

Defendant wants a nontextual limit read into § 441f, 

suggesting when Congress wrote “[n]o person shall make a 

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

contributions in the name of another -- those in false names -- 

not those in the names of straw donors/conduits. Had Congress 

                                                                                                                                                                                               

“would be troubling” if there was no promise of reimbursement. 

(PFR 7-8). The dictum is, however, irrelevant: (1) here there 

were such promises; (2) the dictum does not turn promises into 

contributions (PFR 8); defendant (and the conduits) providing 

money under the scheme meant defendant made contributions; and 

(3) as the Panel stated, this timing argument “fails for an 

additional reason:” Defendant conceded he made contributions 

under § 441a, but his same timing argument applied there, 608 

F.3d at 551 n.3, 553. 

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11 

intended such a limit, however, it would have stated so in 

§ 441f. Maine v. Thiboutot, 448 U.S. 1, 4 (1980). 

Defendant seeks this nontextual limit because Congress did 

not use the words “reimbursement,” “indirect,” or “conduit” in 

§ 441f.4

 (PFR 4-5). But the focus is on the words Congress 

actually used, not those it could have included, Pavelic & 

LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 126 (1989), 

and, as the Panel recognized, § 441f does not list any manners 

of contributing, such that the absence of these terms is 

significant, nor is there reason to expect such a list given 

Congress’ focus on the name of the contributor, not manner of 

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

shall make a contribution in the name of another person” 

demonstrates breadth, not ambiguity, United States v. Monsanto, 

491 U.S. 600, 609 (1989), and that broad wording prohibits 

                                                           

4

 The district court’s error resulted largely from its belief 

§ 441f could not prohibit conduit/reimbursed contributions 

because § 441a(a)(8) allows them (GOB 43-44), which defendant 

reiterates (PFR 1, 5-6 n.3). Section 441f, however, does not 

prohibit reimbursed/conduit contributions; it prohibits only 

reimbursed/conduit contributions made in the name of another 

(so-called straw-donor contributions). A properly disclosed 

(within-limit) reimbursed/conduit contribution is lawful under 

§§ 441f and 441a. Defendant also suggests the Panel 

criminalizes innocent conduct, but § 437g(d) requires knowing 

and willful violations for criminal liability. 

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defendant’s contributions, Royal Foods Co., Inc. v. RJR 

Holdings, Inc., 252 F.3d 1102, 1107 n.6 (9th Cir. 2001). 

Defendant, however, relies on statutory context, arguing 

two canons of construction compel inserting his nontextual 

limit. Defendant cites the Russello presumption, noting 

§ 441a(a)(8) uses “conduit” and “indirectly,” but § 441f does 

not. (PFR 6). As the Panel held, however, Congress passed 

§ 441f three years before § 441a(a)(8); the “wording in the 

latter offers little insight into the meaning of the former.” 

608 F.3d at 552; see Almendarez-Torres v. United States, 523 

U.S. 224, 237 (1998).5

Second, as the Panel likewise recognized, the provisions’ 

structure and purpose differ. City of Columbus v. Ours Garage, 

536 U.S. 424, 435-36 (2002) (“presumption . . . grows weaker 

with each difference in the formulation”). Unlike other FECA 

provisions, 2 U.S.C. § 441b(c)(2), Congress did not include 

“directly” and omit “indirectly,” which would suggest Congress 

considered and rejected applying § 441f to indirect 

contributions. Duncan v. Walker, 533 U.S. 167, 172-73 (2001) 

(“State and Federal” in multiple provisions invoked presumption 

                                                           

5

 The Panel noted United States v. Youssef, 547 F.3d 1090 (9th 

Cir. 2008) (per curiam), applied the presumption to statutes 

passed in different years, but distinguished those statutes. 

608 F.3d at 552. Defendant neither challenges the distinction 

nor suggests an intra-circuit conflict. 

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“State” in another meant “Federal” excluded); Barnhart v. 

Peabody Coal Co., 537 U.S. 149, 168 (2003) (unnamed not excluded 

unless suggestion Congress “considered the unnamed” and “meant 

to say no”). Indeed, § 441f is one of several absolute FECA 

bars omitting the direct-and-indirect framework altogether. 2 

U.S.C. §§ 441f, 441g, 441k. The presumption does not control in 

such circumstances, Ours Garage, 536 U.S. at 435-36, as the 

Panel recognized. 

Nor does § 441f omit “conduit” from a list of manners of 

contributing, but the government nevertheless seeks to apply it 

to conduit contributions. Barnhart v. Sigmon Coal Co., Inc., 

534 U.S. 438, 452-54 (2002). Rather, § 441f is a broad 

provision that does not list manners of contributing. The Panel 

correctly recognized the Russello presumption does not support 

reading nontextual limits into it. Russello v. United States, 

464 U.S. 16, 25 (1983) (specific in one statute not “read as 

imposing a limitation upon the general provision in the other”). 

Second, defendant argues applying § 441f here renders 

“indirectly” and “conduit” in § 441a(a)(8) superfluous because 

the definition of “contribution” (§ 431(8)(A)(i)) would already 

embrace them. (PFR 6). As the Panel held, however, 

§ 441a(a)(8)’s wording “shows that indirect gifts are merely 

particular types of contributions, subsumed within the general” 

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definition, 608 F.3d at 553, meaning there is no superfluity. 

Congress appears to have included § 441a(a)(8)’s wording to 

provide “guidance on accounting” for the newly-re-imposed 

contribution limits. Id. at 554; see Ali, 552 U.S. at 226 (no 

superfluity; “Congress may have simply intended to remove any 

doubt” particular officers were included).6

Defendant has not explained why this analysis is wrong, nor 

identified an intra- or inter-circuit conflict. 

C. THE PANEL CORRECTLY RECOGNIZED DEFENDANT’S NONTEXTUAL LIMIT 

WAS INCONSISTENT WITH FECA’S PURPOSE 

Defendant suggests adopting his nontextual limit “results 

in no logical inconsistencies.” (PFR 9). But, as the Panel 

                                                           

6

 Defendant also suggests the word “indirectly” is rendered 

superfluous in §§ 441b, 441c, and 441e. (PFR 7 n.4). Section 

441b, however, has its own definition of contribution, meaning 

the mention of “indirect” there does not suggest reading a limit 

into § 441f. And the histories of now-§§ 441c (54 Stat. 772 

(1940)) and 441e (80 Stat. 248 (1966)) show why such canons are 

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

legislature,” Monsanto, 491 U.S. at 611 (citation and internal 

quotations omitted); see Lamie v. United States Trustee, 540 

U.S. 526, 536 (2004), particularly for Acts, like FECA, spanning 

numerous years and amendments. Both statutes were passed before 

FECA (1971) and before FECA’s (or its predecessors’) generallyapplicable definition applied to them. 18 U.S.C. § 591 (1970) 

(identifying pre-FECA definition’s scope). Both thus prohibited 

direct or indirect/intermediary “contributions” “of money” or 

“other thing of value,” 18 U.S.C. §§ 611, 613 (1970), although 

money and things of value are in the generally-applicable 

definition. When Congress applied the definition to these 

provisions, the now-unnecessary wording was not eliminated. 

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recognized, defendant’s argument is inconsistent with FECA’s 

purpose. 608 F.3d at 553-54. Congress created now-§ 441a(a)(8) 

three years after now-§ 441f in 1971. Defendant agreed “full 

disclosure of campaign contributions, including their source, 

was an objective of the 1971” Act. (AAB 44). To accomplish 

that objective, Congress required records/reports with the names 

of contributors. 608 F.3d at 553. Now-§ 441f was the only 

provision in the 1971 Act compelling contributors to use their 

own names, meaning, if defendant's interpretation were correct, 

no provision in that Act prohibited people from hiding their 

identities by contributing in conduits’ names, rendering the 

recordkeeping/reporting conditions meaningless. As the Panel 

recognized, it is “highly unlikely” that a Congress focused on 

disclosure would have intended to omit such contributions, 

“which were a recognized concern.” Id. at 554. 

Defendant suggested Congress passed now-§ 441a(a)(8) in 

1974 to fix this loophole. Id. As noted above, however,                  

§ 441f’s broad language has no loophole, and includes neither 

textual limit, nor suggestion it reaches only some contributions 

in the name of another. Moreover, as the Panel recognized, id., 

it is unlikely Congress would fix a loophole in § 441f by 

creating § 441a(a)(8), rather than amending § 441f, and § 441f 

potentially places liability on all actors in the prohibited 

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16 

conduct: the contributor, the person allowing his/her name to 

be used, and the candidate. Section 441a(a)(8), by contrast, 

imposes a reporting duty only on the conduit. Placing liability 

solely on straw donors -- the least culpable party -- is 

contrary to traditional liability principles, Bartnicki v. 

Vopper, 532 U.S. 514, 529 (2001), and leaving defendant free 

from liability under FECA for using conduits’ names creates, 

rather than fixes, a loophole. 

Indeed, defendant’s argument centers on the lower threshold 

for felony penalties under § 441f and his view Congress created 

this lower threshold because false-name contributions (§ 441f) 

are “a greater evil” than contributions in conduits’ names 

(§ 441a(a)(8)). (AAB 26, 2). But, as the Panel recognized, the 

evil is the same: The lack of transparency. Reading FECA as 

prohibiting this same evil in separate provisions renders the 

one with more severe penalties (§ 441f) avoidable. Indeed, 

under defendant’s view, people can hide their identity by: 

(1) contributing in false names, facing liability/penalties 

under § 441f; or (2) contribute in conduits’ names, facing no 

liability/penalties under FECA for hiding their identity. 

Defendant's interpretation renders § 441f avoidable and 

essentially superfluous. 

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Moreover, Congress first created differing penalties in 

2002, enacting a general felony provision triggered by 

contributions of $25,000 or more, 116 Stat. 106, § 312, and 

carving out a lower threshold (exceeding $10,000) for felony 

violations of § 441f, 116 Stat. 108, § 315. But (1) Congress 

passed this § 441f carve-out after hearings on conduit/strawdonor violations from the 1996 election, during which, Congress 

said § 441f applied to them (GOB 53-54); (2) the legislative 

history shows Congress created § 441f’s carve-out because of 

unhappiness over penalties for conduit/straw-donor contributions 

(GRB 16); and (3) Congress entitled § 441f's carve-out 

provision, “[i]ncrease in penalties imposed for violations of 

conduit contribution ban,” 116 Stat. 108, § 315. 

Thus, accepting defendant's argument would mean: 

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

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

some such contributions (false-name contributions) despite the 

lack of textual limit and despite Congress passing it as part of 

a 1971 Act focused on disclosure; (2) Congress prohibited 

contributions in the names of conduits three years later in a 

different provision, placing liability only on conduits, 

flipping traditional liability principles; and (3) Congress did 

so because it wanted lesser penalties for contributions in 

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18 

conduits’ names, although when it created the differing 

penalties, Congress indicated the opposite. The Panel properly 

rejected this interpretation. 

D. THE PANEL CORRECTLY HELD LENITY DID NOT APPLY 

Based on text, structure, and purpose, the Panel held 

§ 441f unambiguously prohibited defendant’s contributions. 608 

F.3d at 555. Defendant suggests the Panel’s use of 

interpretative tools demonstrates ambiguity, requiring lenity. 

(PFR 9-10). Such tools, however, determine a statute’s plain 

meaning; their use does not create ambiguity. 608 F.3d at 549 

(citing cases); Wilderness Soc’y v. United States Fish & 

Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir. 2003) (en banc). 

And lenity applies “only when, after consulting traditional 

canons of statutory construction, we are left with an ambiguous 

statute.” United States v. Hayes, 129 S. Ct. 1079, 1088-89 

(2009) (citation and internal quotations omitted); United States 

v. Iverson, 162 F.3d 1015, 1025 (9th Cir. 1998). The Panel 

analyzed FECA using long-accepted interpretative principles, 

determined it was unambiguous, and correctly declined lenity. 

Even were FECA ambiguous, lenity would not apply. Since 

1977, an FEC regulation has explained that defendant’s conduct 

violated § 441f, 11 C.F.R. § 110.4(b)(2)(i), that regulation is 

entitled to deference, FEC v. Democratic Senatorial Campaign 

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19 

Comm., 454 U.S. 27, 37 (1981), and deference controls over 

lenity, Mujahid, 413 F.3d at 998-99; Pacheco-Camacho v. Hood, 

272 F.3d 1266, 1271-72 (9th Cir. 2001). 

 Defendant also suggests First Amendment concerns require 

narrowing § 441f but, like lenity, constitutional avoidance 

applies only when a statute is ambiguous -- which the Panel held 

FECA is not -- and the constitutional issue must raise “serious” 

concerns. (GRB 22-23). The district court recognized precedent 

barred defendant’s First Amendment claim (GER 144), and 

defendant has neither argued to the contrary nor identified a 

viable First Amendment right § 441f impacts. Defendant suggests 

it interferes with his freedom of association, but it does not, 

limiting only his use of others’ names. The Supreme Court 

upheld FECA’s disclosure provisions and contribution limits, 

Buckley v. Valeo, 424 U.S. 1, 23-68 (1976) (per curiam), and 

defendant lacks a right to use straw donors’ names to circumvent 

either, Goland, 903 F.2d at 1258-61. Constitutional avoidance 

is, thus, misplaced. 

E. THE PANEL CORRECTLY UPHELD THE INDICTMENT’S WORDING 

Defendant also seeks rehearing on his newly-raised 

challenges on appeal to the indictment’s wording. (PFR 12-16). 

Defendant argues the indictment’s references to “contributions” 

by conduits and defendant’s “reimbursement” suggest only the 

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20 

conduits made “contributions.” (PFR 15). The indictment, 

however, states defendant made “contributions” in others’ names. 

(GER 15, 18). The Panel held this language together “reasonably 

describe[d]” reimbursement as defendant’s method of contributing 

in others’ names. 608 F.3d at 556. Defendant neither explains 

why that analysis is wrong, nor expresses confusion about the 

charges. United States v. Lopez-Gonzalez, 183 F.3d 933, 935 

(9th Cir. 1999) (indictment provides notice of charges). 

Indeed, the indictment referred to “conduit” contributors as 

people permitting their names to be used to effect contributions 

in others’ names and cited 13 people in whose name defendant 

contributed, with the dates and amounts. (GER 14, 18). 

Defendant also suggests the indictment fails to allege he 

knew the conduits would not report his name. (PFR 15-16). 

Defendant waived this claim by first raising it in his PFR. 

Picazo v. Alameida, 366 F.3d 971 (9th Cir. 2004). Regardless, 

the claim lacks merit because the indictment alleges defendant 

“knowingly and willfully conspired and agreed to make . . . 

contributions in the name of others” (GER 15; see also GER 18), 

which does not reasonably suggest defendant believed the 

contributions would be made in his name. 

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21 

IV 

CONCLUSION 

Accordingly, this Court should deny defendant’s petition. 

DATED: October 1, 2010 Respectfully submitted, 

 ANDRÉ BIROTTE JR. 

 United States Attorney 

 ROBERT E. DUGDALE 

 Assistant United States Attorney 

 Chief, Criminal Division 

 _______/s/________________

 ERIK M. SILBER 

 Assistant United States Attorney 

 Criminal Appeals Section 

 

 Attorneys for Plaintiff-Appellant 

 UNITED STATES OF AMERICA 

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