No. 09-50296 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

______________________ 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellant, 

v. 

PIERCE O’DONNELL, 

 Defendant-Appellee. 

______________________ 

On Appeal from the United States District Court 

for the Central District of California 

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

Hon. S. James Otero, United States District Judge 

______________________ 

BRIEF OF DEFENDANT-APPELLEE PIERCE O’DONNELL

______________________ 

 GEORGE J. TERWILLIGER III 

 DANIEL B. LEVIN

 DARRYL S. LEW, on the brief 

 MICHAEL H. HUNEKE, on the brief 

 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 

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

THE ISSUE PRESENTED FOR REVIEW ............................................... 1

PRELIMINARY STATEMENT ................................................................. 1

STATEMENT OF FACTS........................................................................... 5

SUMMARY OF ARGUMENT.................................................................... 7

ARGUMENT............................................................................................... 12

I. SECTION 441F DOES NOT PROHIBIT REIMBURSING 

CAMPAIGN CONTRIBUTIONS MADE BY OTHERS 

USING THEIR TRUE NAMES...................................................... 12

A. THE PLAIN MEANING OF SECTION 441F, 

ESPECIALLY INTERPRETED IN THE CONTEXT OF 

FECA, DOES NOT PROHIBIT REIMBURSING 

CAMPAIGN CONTRIBUTIONS. ............................................ 12

1. The plain meaning of Section 441f does not prohibit 

reimbursing campaign contributions....................................... 12

2. Construing FECA as a whole reinforces the conclusion 

that Section 441f does not prohibit reimbursement of 

campaign contributions............................................................ 17

3. The government’s “plain wording” argument is 

inconsistent with the actual language of Sections 441a 

and 441f.................................................................................... 22

4. The government’s and amici’s argument that the decision 

below effectively stripped Section 441f of any meaning is 

incorrect. .................................................................................. 24

B. NO COURT HAS HELD THAT SECTION 441F 

PROHIBITS REIMBURSING CAMPAIGN 

CONTRIBUTIONS MADE BY OTHERS USING 

THEIR TRUE NAMES. ............................................................. 28

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C. THE STATE EXPERIENCE, CITED BY ONE 

AMICUS, SUPPORTS DEFENDANT’S 

INTERPRETATION, NOT THE GOVERNMENT’S............ 36

D. THE FEC’S INTERPRETATION, WHICH IS 

CONTRARY TO THE PLAIN MEANING OF THE 

STATUTE, IS ENTITLED TO NO WEIGHT......................... 41

E. THE LEGISLATIVE HISTORY IS MIXED AND DOES 

NOT—AND CANNOT—CONTRADICT THE PLAIN 

MEANING OF THE STATUTE. .............................................. 43

1. The legislative history of Section 441f contains no 

statements suggesting that it prohibits reimbursements.......... 44

2. The subsequent legislative history relied on by the 

government is of limited interpretive value and cannot 

overcome the plain meaning of the statute. ............................. 46

F. THE DECISION BELOW DOES NOT CREATE ANY 

OBSTACLE TO ENFORCEMENT OF FECA AND 

RELEVANT JURISPRUDENTIAL PRINCIPLES 

FAVOR APPLICATION OF THE RULE OF LENITY. ....... 49

II. EVEN IF SECTION 441F COULD BE READ TO 

PROHIBIT REIMBURSEMENTS, THE INDICTMENT 

BELOW WOULD STILL BE DEFECTIVE AND HAVE 

BEEN PROPERLY DISMISSED. .................................................. 56

A. LEGAL STANDARD.................................................................. 56

B. THE FACTUAL ALLEGATIONS IN THE 

INDICTMENT ARE OF ILLEGAL 

REIMBURSEMENTS, NOT ILLEGAL 

CONTRIBUTIONS..................................................................... 58

CONCLUSION ........................................................................................... 58

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TABLE OF AUTHORITIES 

Supreme Court of the United States 

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 

515 U.S. 687 (1995)................................................................................. 53

Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438 (2002) ................. 15, 18-19 

Barnhart v. Walton, 535 U.S. 212 (2002)..................................................... 41 

Brecht v. Abrahamson, 507 U.S. 619 (1993)................................................ 30 

Bhd. of R.R. Trainmen v. Baltimore & O. R. Co., 331 U.S. 519 (1947) ...... 48

Buckley v. Valeo, 424 U.S. 1 (1976)....................................................... 17, 52 

Caminetti v. United States, 242 U.S. 470 (1917) ......................................... 15 

Cent. Valley Cmty. Coll. v. Katz, 546 U.S. 356 (2006). ............................... 29 

Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 

(1984)....................................................................................................... 54

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) .................................... 29 

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

447 U.S. 102 (1980)................................................................................. 47 

Crandon v. United States, 494 U.S. 152 (1990)...........................11-12, 55-56 

Cross v. Burke, 146 U.S. 82 (1892).............................................................. 29 

DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 

485 U.S. 568 (1988) ................................................................................ 55

Demarest v. Manspeaker, 498 U.S. 184 (1991) ................................ 41-42, 46 

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ....................... 31 

Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 

128 S. Ct. 2326 (2008)............................................................................. 48 

Garcia v. United States, 469 U.S. 70 (1984)................................................ 44 

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Hamdan v. Rumsfeld, 548 U.S. 557 (2006) .................................................. 19 

Hamling v. United States, 418 U.S. 87 (1974) ............................................. 57 

Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935) ............................. 29 

Ingram v. United States, 360 U.S. 672 (1959) ............................................... 7 

Jama v. ICE, 543 U.S. 335 (2005).......................................................... 29, 31 

Leary v. United States, 395 U.S. 6 (1969)............................................... 46-47 

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

523 U.S. 26 (1998)................................................................................... 17 

McConnell v. FEC, 540 U.S. 93 (2003) ....................................................... 30 

McNally v. United States, 483 U.S. 350 (1987) ................................ 30, 50-51 

Parr v. United States, 363 U.S. 370 (1960).................................................... 7 

Pavelic & LeFlore v. Marvel Entm’t. Group, 493 U.S. 120 (1989)............. 27 

Perrin v. United States, 444 U.S. 37 (1979)................................................. 15 

Pub. Employees Ret. Sys. of Ohio v. Betts, 492 U.S. 158 (1989)................. 42 

Rubin v. United States, 449 U.S. 424 (1981)........................................... 43-44 

Russell v. United States, 369 U.S. 749 (1962).............................................. 57 

Solid Waste Agency v. United States Army Corps of Eng’rs, 

531 U.S. 159 (2001)................................................................................. 55

TRW Inc. v. Andrews, 534 U.S. 19 (2001)............................................... 19-20 

United States v. Bass, 404 U.S. 336 (1971).................................................. 51 

United States v. Kokinda, 497 U.S. 720 (1990)............................................ 52 

United States v. Kozminski, 487 U.S. 931 (1988) ................................... 53-54

United States v. Sampson, 371 U.S. 75 (1962)............................................. 56 

United States v. Santos, 128 S. Ct. 2020 (2008) .......................................... 51 

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Wales v. Whitney, 144 U.S. 564 (1885)........................................................ 29 

United States Courts of Appeals 

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003).................................. 42, 52

Barapind v. Enomoto, 400 F.3d 744 (9th Cir. 2005).................................... 31 

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) ........................................ 17 

Dolfi v. Pontesso, 156 F.3d 696 (6th Cir. 1998)...................................... 54-55 

EEOC v. Westinghouse Elec. Corp., 925 F.2d 619 (3d Cir. 1991) .............. 42 

Emily’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) ........................................ 52 

Exp. Group v. Reef Indus., Inc., 54 F.3d 1466 (9th Cir. 2004) .................... 31 

Goland v. United States, 903 F.2d 1247 (9th Cir. 1990).............................. 31 

Gov’t of Guam ex rel. Guam Econ. Dev. Auth. V. United States, 

179 F.3d 630 (9th Cir. 1999) ................................................................... 27 

Habib v. Raytheon Co., 616 F.2d 1204 (D.C. Cir. 1980) ............................. 48 

Mariani v. United States, 212 F.3d 761 (3d Cir. 2000)................................ 32

Newdow v. U.S. Congress, 328 F.3d 466 (9th Cir. 2003) ............................ 31 

Pacheco-Camacho v. Hood, 272 F.3d 1266 (9th Cir. 2001)................... 52-53 

Perez-Olivo v. Chavez, 394 F.3d 45 (1st Cir. 2005)..................................... 53 

United States v. Bond, 552 F.3d 1092 (9th Cir. 2009) ................................. 31 

United States v. Curran, 20 F.3d 560 (3d Cir. 1994) ................................... 33 

United States v. Hankin, 607 F.2d 611 (3d Cir. 1979) ............................. 8, 28 

United States v. Hsia, 176 F.3d 517 (D.C. Cir. 1999).................................. 33 

United States v. Jensen, 93 F.3d 667 (9th Cir. 1996)..................................... 5 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999)............. 32-33 

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United States v. Keith, 605 F.2d 462 (9th Cir. 1979) ................................... 57 

United States v. McGoff, 831 F.2d 1071 (D.C. Cir. 1987) ...................... 54-55

United States v. Serafini, 233 F.3d 758 (3d Cir. 2000) ........................... 31-32 

United States v. Sun-Diamond Growers of Cal., 138 F.3d 961 

(D.C. Cir. 1998)....................................................................................... 33 

United States v. Wuco, 535 F.2d 1200 (9th Cir. 1976)............................ 56-57 

United States v. Youssef, 547 F.3d 1090 (9th Cir. 2008) (per curiam) ... 19-20 

Williams v. United States, 265 F.2d 214 (9th Cir. 1959).............................. 57 

United States District Courts 

AFL-CIO v. FEC, 177 F. Supp. 2d 48 (D.D.C. 2001)............................ 42, 56

FEC v. Kopko, Civ. No. 91-CV-7764 (E.D. Pa. May 22, 1992) .................. 35 

FEC v. Lawson, Civ. No. 6:90-2116-9 (D.S.C. Apr. 8, 1991) ..................... 36 

FEC v. Rodriguez, Civ. No. 86-687-CIV-T-10 (M.D. Fla. Oct. 28, 

1998)........................................................................................................ 36 

FEC v. Weinstein, 462 F. Supp. 243 (S.D.N.Y. 1978)............................ 34-35 

FEC v. Williams, Civ. No. 93-6321-ER (C.D. Cal Jan. 31, 1995)............... 36 

FEC v. Wolfson, Civ. No. 85-1617-CIV-T-12 (M.D. Fla. Feb. 6, 1986)..... 36 

Fieger v. Gonzales, 2007 WL 2351006 (E.D. Mich. Aug. 15, 2007) .......... 35 

United States v. Curran, 1993 WL 137459 (E.D. Pa. April 28, 1993) ........ 33 

United States v. Hsia, 24 F. Supp. 2d 33 (D.D.C. 1998).............................. 33 

United States v. Hsu, 2007 WL 4245863 (S.D.N.Y. Nov. 27, 2007)........... 34 

United States v. Hsu, 2009 WL 2495794 (S.D.N.Y. Aug. 10, 2009)........... 34 

United States v. Johnston, 2008 WL 2544779 (E.D. Mich. June 20, 

2008)........................................................................................................ 35 

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United States v. Trie, 23 F. Supp. 2d 55 (D.D.C. 1998)............................... 34 

State Courts 

State v. Azneer, 526 N.W.2d 298 (Iowa 1995)............................................. 40 

State v. Palmer, 810 P.2d 734 (Kan. 1991).................................................. 40 

Latchem v. State, 1999 WL 587238 (Alaska Ct. App. Aug. 4, 1999).......... 40 

Federal Statutes 

2 U.S.C. § 31-2(a)(3)(A) (2006)................................................................... 14 

2 U.S.C. § 431(4) (2000) .............................................................................. 17 

2 U.S.C. § 431(8)(A) (2000)......................................................................... 15 

2 U.S.C. § 431(9) (Supp. II 2000) ................................................................ 23 

2 U.S.C. § 432 (2000)................................................................................... 17 

2 U.S.C. § 433 (2000)................................................................................... 17 

2 U.S.C. § 437g(a)(12)(A) (2000) ................................................................ 42 

2 U.S.C. § 437g(d)(1)(A) (Supp. II 2000).................................................... 10 

2 U.S.C. § 437g(d)(1)(D) (Supp. II 2000).................................................... 10 

2 U.S.C. § 439a (Supp. II 2000) ................................................................... 17 

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

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

2 U.S.C. § 441b (Supp. II 2000) ................................................................... 17 

2 U.S.C. § 441b(b)(2) (Supp. II 2000).......................................................... 18 

2 U.S.C. § 441c (2000) ................................................................................. 17 

2 U.S.C. § 441c(a)(1) (2000) ........................................................................ 18 

2 U.S.C. § 441e (Supp. II 2000) ................................................................... 17 

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2 U.S.C. § 441e(a)(1) (Supp. II 2000).......................................................... 18 

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

2 U.S.C. § 610(d) (2006) .............................................................................. 15 

5 U.S.C. § 8902a(a)(2)(A) (2006) ................................................................ 15 

18 U.S.C. § 3624 (2000)............................................................................... 53 

Federal Regulations 

11 C.F.R. § 110.6(d) ..................................................................................... 43 

State Statutes 

Cal. Bus. & Prof. Code § 6102(a)................................................................... 2 

Conn. Gen. Stat. § 9-622............................................................................... 39 

Fla. Stat. § 106.08(5)(a) .............................................................................. 39 

Haw. Rev. Stat. § 11-202.............................................................................. 37 

Idaho Code Ann. § 67-6614 ......................................................................... 39 

Iowa Code § 68A.502 .................................................................................. 37 

Kan. Stat. Ann. § 25-143 .............................................................................. 41 

La. Rev. Stat. Ann. § 18:1505.2(A)(1) ......................................................... 39 

Mo. Rev. Stat. § 130.031(3).......................................................................... 39 

Nev. Rev. Stat. § 294A.112 ..................................................................... 37-38 

N.J. Rev. Stat. § 19:44A-20......................................................................... 38 

S.D. Codified Laws § 12-27-12.................................................................... 38 

Wash. Rev. Code § 42.17.780 ...................................................................... 39 

Legislative History 

S. 3065, 94th Cong. § 111 (1976)................................................................. 47 

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H.R. Rep. No. 93-1239 ................................................................................. 48 

122 Cong. Rec. 4,870-71 (1976) .................................................................. 47 

122 Cong. Rec. H2606 (daily ed. Mar. 31, 1976) ........................................ 47 

State Materials 

1997 Kan. Comm’n on Gov’t Stds. and Conduct Op. No. 1997-45 

(Sept. 11, 1997)........................................................................................ 41 

1998 Ill. Att’y Gen. Op. 004, 1998 WL 205432 .......................................... 41 

Other Sources 

2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory 

Construction § 46:1 (7th ed. 2008) .................................................... 15-16 

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THE ISSUE PRESENTED FOR REVIEW 

 Does the conduct charged in the Indictment—reimbursing individuals 

after they have made contributions to a candidate for federal office using 

their true names—violate Section 441f,1

 which provides that “[n]o person 

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

PRELIMINARY STATEMENT 

 The issue is not whether it is unlawful for one individual to reimburse 

$26,000 in contributions to a presidential candidate made by thirteen other 

individuals. The arguments by the government, Federal Election 

Commission (“FEC”), and amici that the decision below creates a 

“loophole” that would render contribution limits “meaningless” are simply 

wrong. Section 441a of the Federal Election Campaign Act (“FECA”) 

expressly prohibits “indirectly” making “contributions, . . . including 

contributions which are in any way . . . directed through an intermediary or 

conduit,” and it requires disclosure to ensure that this prohibition cannot be 

evaded. 

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 Thus, affirming the decision below would occasion no “loophole” in 

FECA. The government simply elected to charge under a felony provision 

that does not apply, rather than under Section 441a, which could have a 

lesser penalty.2

 The adequacy of the underlying Indictment turns on whether Section 

441f, which provides that “[n]o person shall make a contribution in the name 

of another person,” prohibits reimbursement using one’s own name to 

individuals for contributions they made using their true names. As the 

District Court found, reimbursing a contribution made by someone using his 

or her true name is not the same as “mak[ing] a contribution in the name of 

another.” Rather, Section 441f prohibits providing a name other than the 

contributor’s own name when making a contribution. 

 Having no answer to the effect of the express language of the statute, 

 1

 “Section 441a” refers to 2 U.S.C. § 441a, “Section 441f” refers to 2 U.S.C. 

§ 441f, and references to Title 2 are to the 2000 United States Code, as 

amended through Supplement II, unless otherwise noted; “Gov Br” refers to 

the government’s brief on appeal; “FEC Br,” “CREW Br,” and “CLC Br” 

refer, respectively, to the amici briefs for the Federal Election Commission, 

Citizens for Responsibility and Ethics in Washington, and Campaign Legal 

Center and Democracy 21. 

2

 On the facts charged—reimbursing “more than $10,000” in contributions, 

GER 18—Section 441a would carry a misdemeanor penalty; the penalty 

under Section 441f is a felony, conviction for which would result in 

Defendant-Appellee’s (“Defendant”) immediate disbarment. See Cal. Bus. 

& Prof. Code § 6102(a). 

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the government and amici resort to: 

• Falsely alarmist policy arguments; 

• Legislative history irrelevant because there is no statutory ambiguity 

and unpersuasive nonetheless, including because it mostly post-dates 

enactment of Section 441f; 

• Inapposite court decisions, none of which addressed the issue in this 

case, let alone decided it adversely to Defendant’s position; and 

• Deference to FEC regulations not controlling because they are at odds 

with the plain language of the statute, and contrary to principles of 

lenity. 

 The Court need not consider more than the unambiguous statutory 

language. However, if the Court were to consider the policy and agency 

deference arguments, an overriding consideration is recognition that when 

Congress acts to regulate core First Amendment-protected conduct—which 

includes financing campaigns—it must do so narrowly and with precision. 

Under well-established principles, the need for doing so could not be greater 

than when Congress provides criminal penalties for otherwise-protected 

conduct. 

 For the same reasons, we respectfully submit that the government’s 

argument that deference to the FEC’s interpretation of Section 441f 

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displaces application of the rule of lenity is incorrect. As Congress must 

legislate with precision when regulating First Amendment conduct, the 

Court should adhere to the rule of lenity, rather than to the views of an 

agency, because lenity effectuates fundamental constitutional protections 

that are not subsumed in agency deference. 

 The Government’s characterization of the District Court’s ruling as 

reading a “non-textual limitation” into Section 441f is also without merit 

because limiting a criminal statute to its text is not reading into it a “nontextual limitation.” Criminal statutes are not elastic bands of enforcement 

authority that prosecutors may twist and apply at will. They are instead 

confined to their textual requirements or proscriptions and, if ambiguous, are 

to be interpreted in favor of the accused, whose liberty is at stake. Allowing 

the government to contort Section 441f to prohibit the conduct charged in 

the Indictment would improperly license prosecutors to effectively rewrite 

criminal statutes’ proscriptions at will. 

 Finally, the Indictment is fatally flawed because factually it does not 

charge Defendant with making the contributions, but rather with making 

reimbursements in his own name to those who had previously made the 

contributions in their own names. That defect, alone, requires the Court to 

affirm the decision below, because when the factual allegations in an 

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indictment do not make out the offense charged, the indictment must be 

dismissed. 

STATEMENT OF FACTS3

Counts One and Two of the Indictment are based on Defendant’s 

allegedly having “reimbursed” in his own name other persons for 

“contributions” they made in their own names to the EFP political 

committee.4

 The factual predicate of the Indictment is clear: other 

individuals made “contributions” and Defendant “reimbursed” them. 

The government elected to charge a two-step sequence of events, 

alleging first that a number of individuals made “contributions” to the EFP 

political committee. Those contributions were complete when made. 

Subsequently, the Indictment alleged, a second transaction occurred wherein 

Defendant, using his own name, reimbursed those contributors for the 

amounts of their contributions. 

In pertinent part, Count Two alleges that: 

 

3

 The government references certain additional “facts” from a motion in 

limine to “provide[] context.” Gov Br 3 n.2, 21 n.11. While those “facts” 

are irrelevant to this Court’s review of the decision below, they are not 

properly before this Court on review of a motion to dismiss, United States v. 

Jensen, 93 F.3d 667, 669 (9th Cir. 1996), as the government acknowledges 

(Gov Br 3 n.2), and should be ignored. 

4

 Although not specified in the Indictment, there is no dispute that “EFP” 

refers to the Edwards for President political committee. 

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[S]pecifically, defendant O’DONNELL knowingly 

and willfully caused other persons to contribute to 

EFP . . . and reimbursed those persons a total of 

more than $10,000 for their contributions . . . . 

GER 18 (emphasis added).5

 The Indictment further alleges that the reimbursements would be 

effected by means of “bank checks drawn on the account of defendant,” and 

that “defendant . . . would sign bank checks drawn on the account of 

defendant . . . reimbursing the conduit contributors for their contributions . . 

. .” GER 16 (emphasis added). 

 Overt Acts 1-7 in Count One similarly allege that Defendant solicited 

“contributions” or caused others to make “contributions,” and Overt Acts 8-

12 allege that such contributions were “reimbursed.” GER 16-17. 

The Indictment does not allege that the contributions themselves were 

made using anything other than the contributors’ true names. Nor does it 

allege facts showing that Defendant made “contributions”6

 or that 

 

5

 Although the Indictment refers to advances as well as reimbursements, 

GER 18, the factual allegations in the Indictment involve only 

reimbursements. GER 15-17. 

6

 Although Count Two states that “defendant . . . through his agents and 

employees, knowingly and willfully made, and caused to be made, 

contributions in the names of other persons,” it clarifies that “[m]ore 

specifically, defendant . . . knowingly and willfully caused other persons to 

contribute to EFP . . . and reimbursed those persons . . . .” GER 18. 

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Defendant’s “reimbursements,” using his own name, are “contributions.”7

SUMMARY OF ARGUMENT 

 Counts One and Two of the Indictment were properly dismissed 

because Section 441f does not prohibit reimbursing campaign contributions 

made by others using their true names.8

 The text of Section 441f begins and 

ends the proper analysis. Nonetheless, while unnecessary, consideration of 

FECA as a whole and, specifically, a comparison of the language of Sections 

441a and 441f confirm this conclusion. 

 The government’s statutory interpretation argument not only ignores 

the plain meaning of the statue, but also runs afoul of long-standing 

principles of statutory construction, most importantly those (i) dictating 

against interpretations that render portions of a statute superfluous and (ii) 

explaining that when Congress includes words in one section of a statute but 

 

7

 One absurd result of the government’s position would be that, on the facts 

alleged in the Indictment, the actual contributors violated Section 441f by 

reporting their own names rather than Defendant’s name, even though at the 

time the contributors made the contributions, the only financial transaction 

that had occurred was one in which the contributors transferred their own 

funds to the EFP committee and Defendant had transferred nothing. 

8

 If the conduct alleged in the substantive count (Count Two) does not 

constitute a crime under Section 441f, then Count One, which charges a 

conspiracy to violate Section 441f, also fails to allege a crime. See, e.g.,

Parr v. United States, 363 U.S. 370, 393 (1960); Ingram v. United States, 

360 U.S. 672, 680-81 (1959). The government did not dispute this point 

below. Consequently, the argument here is framed in terms of Count Two. 

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omits them from another, it intends a different meaning for the two sections. 

(Points I.A.1. and I.A.2.) 

 The government’s “plain wording” argument is anything but that 

because it ignores the statutory text, would insert terms without any textual 

basis, and would render most of Section 441a(a)(8) and portions of various 

other FECA provisions superfluous. Equally unpersuasive—indeed, 

backwards—is the government’s argument that the decision below would 

strip Section 441f of meaning. Properly construed, Section 441f retains an 

important role in combating campaign finance abuse; construing Section 

441f as the government argues, however, would effectively strip most of 

Section 441a(a)(8) of any meaning. (Points I.A.3. and I.A.4.) 

 The government and amici cannot point this Court to any case holding 

that Section 441f prohibits reimbursements, and Defendant is aware of none. 

Indeed, what is posited to the Court as the “seminal case” on point is merely 

a footnote, in a dissent, that noted, in dicta, an “inference” that a 

reimbursement was a contribution in the name of another.9

 (Point I.B.)10

 

9

 CREW Br 12-13 (citing United States v. Hankin, 607 F.2d 611, 616 n.4 (3d 

Cir. 1979) (Garth, C.J., dissenting)); see FEC Br 14 (citing Hankin, 607 F.2d 

at 612); Hankin, 607 F.2d at 612 (holding that the statute of limitations 

mooted substantive issues). 

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 The FEC’s regulations and policy statements also do not aid the 

government’s position. (Point I.D.) As the District Court correctly ruled, 

“[w]hile these statements may reflect the spirit of FECA, they do not accord 

with the plain language of § 441f read in conjunction with the sections of 

FECA expressly prohibiting ‘conduit’ and ‘indirect’ contributions . . . .” 

GER 7. As such, no deference is due because the agency’s interpretation 

conflicts directly with the statute’s plain language. 

 Even if it were appropriate to consider legislative history in this case 

(which it is not, given the plain meaning of the statute), the key piece of 

legislative history relied on by the government and amici—the amendment 

increasing the penalties under Section 441f—is entitled to little weight 

because it is both (1) subsequent legislative history and (2) merely a 

statutory heading. Overall, the scant legislative history provides no adequate 

basis to expand the express statutory language of Section 441f as the 

government urges. (Point I.E.) 

 Likewise, were it appropriate to consider policy issues (which it is not 

because the statutory language is decisive and fatal to the government’s 

 10 Nor do the similar state statutes help the government. Many distinguish 

between contributions in the name of another and reimbursed contributions, 

supporting Defendant’s, not the government’s, interpretation of Section 

441f. And the cited state court decisions do not hold that a provision similar 

(cont’d) 

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10

claim), they are precisely the opposite of those cited by the government and 

amici. Rather than concern about a non-existent “loophole” in FECA, the 

controlling policy issue is the requirement that criminal statutes be narrowly 

construed and that Congress act with clarity when, as here, it regulates 

legitimate—indeed, core—First Amendment activities. The appropriate 

forum to seek enhanced penalties for reimbursements of campaign 

contributions, as the government and amici seek here by judicial ruling,11 is 

Congress, which would need to act with the specificity required when 

regulating political speech. (Point I.F.) 

 Based on case law holding that deference to the Bureau of Prisons’ 

interpretation of a statute governing the calculation of a prisoner’s credit for 

good behavior trumps the application of the rule of lenity, the government 

asserts that the rule of lenity does not control in the event of ambiguity in the 

statutory language. We respectfully submit that the deference due the 

Bureau of Prisons regarding the calculation of good behavior credits under 

the Sentencing Reform Act is far different from the deference posited by the 

government here. Deferring to the interpretation of an agency charged with 

 

to Section 441f prohibits reimbursements. (Point I.C.) 

11 A violation of Section 441a is a felony for contributions totaling more 

than $25,000, while a violation of Section 441f is a felony for contributions 

totaling more than $10,000. 2 U.S.C. §§ 437g(d)(1)(A), (D). 

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11

enforcement of the statute at issue and displacing the venerable and wellestablished principles that underlie the rule of lenity would be analogous to 

deferring to prosecutors’ interpretation of general criminal statutes, which 

would not be a sufficient basis for abandoning the rule of lenity.12

 Finally, even if Section 441f could be stretched to prohibit 

reimbursements, the Indictment would still be defective. The Indictment 

charges that others made “contributions” using their own names and 

Defendant subsequently reimbursed them. That the Indictment alleged that 

Defendant solicited these contributions is irrelevant. Soliciting contributions 

is not only lawful, it is protected core First Amendment activity. That 

Defendant promised to reimburse the contributions he solicited is also 

irrelevant to the Section 441f analysis. The promise was not what was 

charged as violating Section 441f, as indeed it could not be because a 

promise or pledge is not a contribution. Thus, the Indictment did not 

factually charge Defendant with making campaign contributions in the name 

 

12 We note also that the government cites as authoritative its own manual on 

election law enforcement. Gov Br 27, 38, 44 (citing Craig C. Donsanto & 

Nancy Simmons, Federal Prosecution of Election Offenses (7th ed. 2007)). 

Intending no disrespect to its authors, this Court should give the manual no 

weight for the same reasons as outlined in the text herein regarding the 

government’s argument. See Crandon v. United States, 494 U.S. 152, 168 

(1990); see id. at 177 (1990) (Scalia, J., concurring) (“[W]e have never 

thought that the interpretation of those charged with prosecuting criminal 

(cont’d) 

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12

of others, but rather charged that others made contributions in their own 

names which Defendant then reimbursed using his own name. This variance 

between the charged conduct and the charged statute is fatal and would 

compel affirming dismissal of Counts One and Two of the Indictment, even 

if Section 441f did prohibit reimbursements. (Point II.)

ARGUMENT 

I. 

SECTION 441F DOES NOT PROHIBIT 

REIMBURSING CAMPAIGN CONTRIBUTIONS 

MADE BY OTHERS USING THEIR TRUE NAMES. 

A. THE PLAIN MEANING OF SECTION 441F, ESPECIALLY 

INTERPRETED IN THE CONTEXT OF FECA, DOES NOT 

PROHIBIT REIMBURSING CAMPAIGN CONTRIBUTIONS. 

1. The plain meaning of Section 441f does not prohibit 

reimbursing campaign contributions. 

 As the District Court determined, examination of Sections 441f and 

441a (in particular Section 441a(a)(8)) compels the conclusion that Section 

441f does not prohibit an individual from reimbursing another’s 

contribution. Section 441f is a complete prohibition (“no person shall make 

. . .”). Section 441a(a)(8), in contrast, allows, regulates, and limits conduct 

(conduit contributions) by requiring disclosure of third-party sources of 

 

statutes is entitled to deference.”). 

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13

funds contributed and regulating the total amounts that can be contributed by 

any individual.13

 The language of Section 441a(a)(8), part of the provision limiting 

contributions to presidential campaigns, is clear and unambiguous: 

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. 

Section 441a(a)(8) (emphasis added). 

 Section 441a therefore addresses the conduct alleged in the 

Indictment: exceeding the individual contribution limits by reimbursing 

“conduits” who made contributions. The conduits’ failure to report any 

original source of the contributions also runs afoul of Section 441a. The 

Indictment specifically and repeatedly refers to the people making the 

 

13 The government’s argument that Section 441f bans some conduit 

contributions but not others (Gov Br 43-44) is inconsistent with the text of 

the statute and is illogical. Even if Section 441f could be so construed, its 

application could not be squared with the conduct charged in the Indictment 

because it would create a felony offense when someone subsequently 

reimburses a contribution that was not a violation of Section 441f when 

(cont’d) 

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contributions and being reimbursed by Defendant as “conduit 

contributor[s],” GER 14 (¶ 10(b)); GER 15 (¶ 3); GER 16 (¶¶ 4, 5, 6); GER 

18, and to the contributions themselves as “conduit contributions.” GER 17 

(¶¶ 8-12).14

 The plain language of Section 441f is equally clear and unambiguous: 

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 . . . . 

Section 441f. 

 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, Section 441f prohibits a person from making a contribution using 

other than his or her name; its terms do not proscribe reimbursing a 

contribution made by another.15 Nor does the definition of “contribution” 

 

made. 

14 The government’s claim—made for the first time on appeal—that these 

were really contributions through “straw donors” rather than “conduits,” 

Gov Br 21 n.11, 44, is contradicted by the plain, and repeated, language of 

the Indictment. 

15 Congress has in numerous other contexts explicitly prohibited 

“reimbursements,” but chose not to do so in Section 441f. See 2 U.S.C. 

§ 31-2(a)(3)(A) (2006) (restricting the value of gifts a Senator may accept 

and defining a gift to include “reimbursement for other than necessary 

(cont’d) 

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15

applicable to Section 441f include amounts paid for the purpose of 

reimbursing others for “contributions.” 2 U.S.C. § 431(8)(A).16

When construing statutes, the plain meaning of the words controls: 

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

instance, be sought in the language in which the 

act is framed, and if that is plain, . . . the sole 

function of the courts is to enforce it according to 

its terms. 

Caminetti v. United States, 242 U.S. 470, 485 (1917). Unless otherwise 

indicated, “words [in a statute] will be interpreted as taking their ordinary, 

contemporary, common meaning,” Perrin v. United States, 444 U.S. 37, 42 

(1979), and the “[t]he inquiry [into the meaning of the statute] ceases” if the 

text is plain and unambiguous. Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 

438, 450 (2002). 

 Moreover, “[w]here the words of the statute are clear and free from 

ambiguity, the letter of the statute may not be disregarded under the pretext 

of pursuing its spirit.” 2A Norman J. Singer & J.D. Shambie Singer, 

 

expenses”); 2 U.S.C. § 610(d) (2006) (prohibiting the Congressional Budget 

Office from reimbursing an employee for certain student loan payments); 5 

U.S.C. § 8902a(a)(2)(A) (2006) (prohibiting health care providers from 

providing payment, either directly or through reimbursements, to debarred 

insurance carriers). 

16 The government’s “plain wording” argument based on the statutory 

definition of “contribution,” Gov Br 19-21, is addressed below. It does not 

demonstrate that Section 441f prohibits reimbursements. 

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16

Sutherland Statutory Construction § 46:1 (7th ed. 2008) (footnotes, 

quotation marks, and citations omitted). 

 Applying these principles, the decision below is plainly correct: 

Section 441f prohibits a contributor from making a contribution and using 

another’s name;17 it does not prohibit reimbursements of contributions made 

by others using their true names. Section 441a governs that conduct.18

 Thus, Sections 441f and 441a both are aimed at securing campaign 

contribution limits and disclosing the identities of persons supplying funds 

to campaigns. An individual exceeding the limits through the use of a 

conduit violates Section 441a(a)(8)’s contribution limits and attribution 

requirements; an individual doing so by contributing in a false name violates 

Section 441f. Contrary to the government’s and amici’s arguments, these 

 

17 Defendant has never argued, as the government suggests, that Section 

441f only prohibits the use of “made-up names.” Gov Br 23 n.12. Rather, 

Section 441f prohibits any contribution made using other than the 

contributor’s true name. It is undisputed here, however, that the 

contributors’ provided their true names. They allegedly failed to disclose, as 

required by Section 441a(a)(8) (but not under Section 441f), that Defendant 

was the “original source” of the contribution. That failure, however, would 

be a violation of Section 441a by the contributors, and does not convert 

Defendant’s conduct into a violation of Section 441f. 

18 This conclusion does not amount to “read[ing] a nontextual limitation into 

Section 441f,” as the government repeatedly claims. Gov Br 16, 21-24. 

Rather, the District Court confirmed its interpretation of Section 441f by 

reference to Section 441f’s interaction with other provisions of FECA. 

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sections—properly construed—are perfectly compatible and serve different 

purposes under a common objective. 

2. Construing FECA as a whole reinforces the conclusion that 

Section 441f does not prohibit reimbursement of campaign 

contributions. 

 Primary statutory interpretation principles require that a statute “be 

considered in all its parts when construing any one of them.” Lexecon Inc. v. 

Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 36 (1998). FECA is 

a comprehensive statutory regime governing the election of federal officials. 

See Buckley v. Valeo, 519 F.2d 821, 831 (D.C. Cir. 1975) (en banc) (per 

curiam), aff’d in part, 424 U.S. 1, 143 (1976) (per curiam). FECA regulates 

the organization and registration of political committees, see 2 U.S.C. 

§§ 431(4), 432, 433, subjects them to reporting requirements and limitations, 

see 2 U.S.C. § 439a, and limits some contributions and prohibits others 

altogether, see 2 U.S.C. §§ 441a, 441b, 441c, 441e, 441f. Contributions 

prohibited altogether include those by national banks, corporations, labor 

organizations, government contractors, foreign nationals, and persons in the 

name of other persons. Id. Significantly, this broad statutory scheme does 

not—as the government admits—prohibit altogether “conduit contributions.” 

Section 441a(a)(8); Gov Br 44-45. 

 Congress has also carefully regulated campaign contributions, 

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expressly limiting indirect contributions in statutes and provisions of FECA 

other than Section 441f. See, e.g., 2 U.S.C. § 441b(b)(2) (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. § 441c(a)(1) (prohibiting 

government contractors from “directly or indirectly . . . mak[ing] any 

contribution of money or other things of value” to political parties, 

committees, or candidates); 2 U.S.C. § 441e(a)(1) (prohibiting foreign 

nationals from making contributions “directly or indirectly”). Congress 

chose not to prohibit “indirectly” making a contribution in the name of 

another in Section 441f. 

In sharp contrast, Congress specifically provided that Section 441a’s 

contribution limits would include indirect contributions, explicitly including 

contributions made through conduits (Section 441a(a)(8)), compelling the 

conclusion that Congress intentionally omitted this language from Section 

441f. Contrary to well-established canons of construction, the government 

argues that this Court should interpret Section 441f as prohibiting “indirect” 

contributions. This interpretation, however, would have Section 441f reach 

“direct or indirect” contributions, even though that term is used expressly 

only in other provisions and not in Section 441f. When “Congress includes 

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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.” Barnhart v. Sigmon 

Coal Co., 534 U.S. 438, 452 (2002) (citations omitted); see, e.g., Hamdan v. 

Rumsfeld, 548 U.S. 557, 578 (2006) (“a negative inference may be drawn 

from the exclusion of language from one statutory provision that is included 

in other provisions of the same statute”).19

Applying the term “contribution” under Section 441f to include 

reimbursements also would violate the fundamental rule of statutory 

interpretation “that a statute ought, upon the whole, to be so construed that, 

 

19 The government minimizes the omission of “directly or indirectly” from 

Section 441f by arguing that the omission would be relevant if Section 441f 

included “directly” but not “indirectly,” Gov Br 39-40, and that comparison 

between Sections 441a and 441f is not meaningful because Section 441f’s 

predecessor was not enacted contemporaneously with the provisions 

proscribing certain “direct or indirect” contributions. Gov Br 40-41. 

However, the absence of “directly” in Section 441f is not significant because 

none of the prohibitions on contributions in FECA use “directly” without 

“indirectly.” Clearly, there is no basis in the canons of construction to 

conclude that the omission of “indirectly” is only material to the construct of 

a provision of FECA if “directly” is included. As to the argument that 

Sections 441f and 441a(a)(8) were not enacted at the same time, Section 

441f was re-enacted and amended in 1974 when Section 441a was enacted, 

and twice they were both re-enacted at the same time (in 1976 and 1979) 

with the differing language. See Gov Br 11-16 (reciting history); FEC Br 27 

(same). In any event, this Court presumes that different language in 

different sections of a statute have different meanings, even where the 

provisions were not adopted in the same act. United States v. Youssef, 547 

(cont’d) 

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if it can be prevented, 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). If the government’s view were 

correct, Section 441a(a)(8) would not need to refer to “either directly or 

indirectly . . . including contributions which are in any way earmarked or 

otherwise directed through an intermediary or conduit” because those terms 

would already be included in the simple term “contribution.” Moreover, if, 

as the government suggests, reimbursements are always “contributions,” 

then they would count against aggregate limits and all of the italicized 

language below in Section 441a(a)(8) would be superfluous: 

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 . . . 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 intended recipient of such 

contribution to the Commission and to the 

intended recipient. 

Thus, the government’s interpretation would render 52 of the 79 words in 

Section 441a(a)(8) superfluous and would mean that the Congress, acting a 

 

F.3d 1090, 1094-95 (9th Cir. 2008) (per curiam). 

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few years after adopting Section 441f,20 had no understanding of what it 

meant.21 Such a reading of Section 441f is impermissible.22 

 The government’s interpretation would also impermissibly render the 

phrase “directly or indirectly” superfluous everywhere it appears in FECA, 

since under the government’s construction the word “contribution” alone 

would be broad enough to encompass “indirect” contributions. This would 

render superfluous portions of Sections 441b, 441c, and 441e. 

 The court below carefully analyzed the statutory language in light of 

 

20 Section 441a(a)(8) was added in 1974, after Section 441f had already been 

in the statute for several years. 

21 The government and amici make much of the fact that while Section 

441f’s predecessor was part of FECA beginning in 1971, Section 

441a(a)(8)’s predecessor was not added until 1974, asserting that this shows 

that Section 441f must have prohibited conduit contributions. See, e.g., Gov 

Br 28 n.14, 47-49. But that history is equally consistent with Congress 

having recognized that reimbursements were left unaddressed by the 1971 

Act and adding Section 441a(a)(8)’s predecessor in 1974 to deal with this 

fact. Since the legislative history for Sections 441f and 441a does not 

address which scenario was the case, the enactment sequence is hardly a 

dispositive factor in the government’s favor. 

Moreover, since Congress added Section 441a(a)(8) to FECA at the same 

time it re-enacted and amended Section 441f, an interpretation of Section 

441f that renders most of Section 441a(a)(8) superfluous is especially 

unwarranted. 

22 Defendant does not argue, as the government suggests, Gov Br 41, that the 

adoption of Section 441a limited the reach of Section 441f. The express 

language of Section 441f never reached conduit contributions through 

reimbursements. Rather, Section 441a(a)(8) addresses, explicitly, conduit 

contributions, leaving Section 441f unchanged. 

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22

these well-established principles of statutory construction, GER 2-5, and 

concluded that Section 441f does not prohibit reimbursing campaign 

contributions made by individuals using their true names. That conclusion is 

correct and should be affirmed. 

3. The government’s “plain wording” argument is inconsistent 

with the actual language of Sections 441a and 441f. 

 The government argues that Defendant’s reimbursement of 

individuals who made contributions constituted a “contribution in the name 

of another person,” specifically the persons whom he reimbursed. Gov Br 

19-21. 

 There are multiple defects in the government’s “plain wording” 

argument. The most obvious defect is that, rather than being based on the 

“plain wording” of Section 441f, the government urges the Court to insert 

terms that simply are not there. Thus, the government’s textual argument is 

anything but that. 

 Moreover, even assuming, arguendo, that Defendant’s 

reimbursements constituted a “contribution” under the statutory definition, 

they were made in his true name, not “in the name of another.” There is no 

allegation in the Indictment that Defendant used any name other than his 

own in reimbursing the actual contributors. Indeed, it is undisputed that he 

did so by “bank checks drawn on defendant O’DONNELL’S account.” 

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GER 16-17.23

 In sum, the government advances the following entirely implausible 

readings of Sections 441a and 441f: 

• Section 441f, which does not refer to “conduit” contributions, is in 

fact the “conduit contribution ban.” But although it is the “conduit 

contribution ban,” it does not actually ban all conduit contributions; 

rather it only bans “undisclosed” conduit contributions: “the term 

‘conduit’ in that context is shorthand for referring to a person taking 

on the name of the conduit (straw-donor contributions), not all conduit 

transfers.” Gov Br 44. 

• Section 441a, which does refer to conduit contributions in the 

broadest possible language (“contributions which are in any way . . . 

directed through an intermediary or conduit”), in fact does not address 

all conduit contributions, but only those where the original source is 

disclosed, and then only to count them against aggregate limits: 

 

23 The government’s interpretation could turn almost any expenditure into an 

illegal “contribution in the name of another.” Indeed the government’s 

interpretation is so broad that it would appear to swallow the separate 

statutory definition of expenditure. See 2 U.S.C. § 431(9) (defining an 

expenditure as “any purchase, payment, distribution, loan, advance, deposit, 

or gift of money or anything of value, made by any person for the purpose of 

influencing any election for Federal office”). 

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“Section 441a(a)(8)’s inclusion of ‘contributions which are in any 

way earmarked or otherwise directed through an intermediary or 

conduit to such candidate’ is not designed to refer to his straw-donor 

contributions.” Gov Br 44. 

This is obviously not statutory construction, but statutory invention. 

Licensing the government to prosecute a defendant for a felony based on 

such a creative and fanciful rewriting of a criminal statute would be 

dangerous precedent. 

4. The government’s and amici’s argument that the decision 

below effectively stripped Section 441f of any meaning is 

incorrect. 

 The government incorrectly argues that the interpretation of Section 

441f adopted below is illogical, Gov Br 22, and would leave virtually no 

conduct prohibited by Section 441f. Gov Br 23 n.12, 24; see also FEC Br 2, 

21-23 (the decision below would render Section 441f “virtually 

meaningless”). Thus, the government asserts: 

Nor is the limitation that the court read into 

Section 441f a logical one. There is no functional 

difference between contributing using a false name 

and contributing using the name of a straw donor. 

In each circumstance the name provided to the 

campaign is not that of the actual source of the 

contribution and, in each circumstance, the public 

is prevented from knowing the true source of 

campaign funds in violation of an undisputed 

purpose of the 1971 Act. 

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Gov Br 22-23. 

 This point is plainly wrong. First, whether there is a “functional” 

difference is not the question in this case; rather, it is whether there is a 

statutory difference, which there undeniably is.24 Section 441a(a)(8) 

requires the actual contributor to report the name of the original source of 

the money, thus informing the public of the original source.25 Where a 

person makes a contribution using a false name, however, there is no such 

disclosure and little record by which to trace the original source. 

 

24 The government attempted to argue below that Defendant “basically” or 

“essentially” violated Section 441f. GER 93, 99. The District Court 

rejected this government argument, just as this Court should reject its “no 

functional difference” point, to ensure that the government cannot render 

limitations in criminal statutes meaningless by elasticizing them. 

25 The government and amici consistently ignore the requirements of Section 

441a(a)(8) in making their policy arguments against the decision below. 

Thus, it is simply incorrect to suggest that Defendant is arguing that “he had 

no duty to use his own name when contributing” and that Defendant’s 

argument “frustrates th[e] purpose” of FECA. Gov Br 17. Section 441f 

prohibits Defendant from using a false name. Section 441a establishes a 

duty to report the true name of the original source of funds contributed. 

Similarly, the government’s suggestion that because “neither defendant nor 

anyone else submitted defendant’s name to the candidate with these 

contributions,” it must be a violation of Section 441f, Gov Br 21, ignores the 

fact that the failure of the conduits to provide Defendant’s name was a 

violation of their duty under Section 441a(a)(8). The government’s assertion 

that “[r]equiring treasurers to keep records of, and file reports with, the 

names . . . of contributors would be meaningless if those documents could 

contain the names . . . of straw donors, rather than actual contributors,” Gov 

Br 30, is also incorrect. Again, Section 441a(a)(8) ensures that the records 

would contain the true names of the original source of any contributions. 

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26

 Moreover, the government’s argument that there would be few 

violations of Section 441f if it does not prohibit reimbursements is not only 

irrelevant, but also wrong. There are innumerable means by which false 

identities could be used to make contributions in the name of another person 

and, again, such actions would leave no easy way to identify the source of 

the money. It is perfectly rational for Congress to have concluded that such 

misconduct is a greater evil than reimbursing someone for a contribution 

where the contributor has an obligation to report the original source. 

 Equally incorrect is the government’s assertion that “the court’s 

limitation renders Section 441f avoidable and essentially superfluous. . . . No 

rational person would contribute in a false name (risking prosecution for 

violating Section 441f) when he could hide his identity as the source of the 

campaign funds by contributing in the name of a straw donor . . . .” Gov Br 

24 (emphasis added). This argument is untenable for several reasons. 

 First, a reimbursed contribution could violate Section 441a(a)(8) 

where the original source is undisclosed. That is hardly an irrational scheme 

for Congress to devise. Moreover, the ruling below does not render Section 

441f “essentially superfluous,” as it recognizes that Section 441f prohibits 

contributions made in any name other than the contributor’s. It is, rather, the 

government’s construction which renders most of a section of FECA 

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27

(Section 441a(a)(8)) not just “essentially superfluous,” but entirely so.26

 Equally unavailing are the government’s and amici’s attempts to read 

Sections 441a and 441f together to support their contention that “[a] failure 

by a contributor and his conduit to abide by th[e] disclosure requirement of 

Section 441a results in a violation of Section 441f.” CLC Br 9; see Gov Br 

46. This would result in the anomalous circumstance that by failing to 

comply with Section 441a’s requirements, the contributor and conduit would 

not violate Section 441a, which explicitly governs such conduct, but would 

violate Section 441f, which does not. 

 Moreover, the operative temporal limitation expressed in the text of 

Section 441f—“make a contribution”—renders the government’s construct 

illogical and outside the text of the statute because it would have a crime 

being committed not when the contribution is made, but rather when an 

event subsequent to the “making” of a contribution occurs. Plainly, Section 

441f cannot be construed to be rendered operative only by events that occur 

subsequent to the making of a contribution, because it is acts done at the 

 

26 Even if the government’s policy arguments had some merit, which they do 

not, as this Court has made clear, “we are bound by the words that Congress 

actually used.” Gov’t of Guam ex rel. Guam Econ. Dev. Auth. v. United 

States, 179 F.3d 630, 635 (9th Cir. 1999); see also Pavelic & LeFlore v. 

Marvel Entm’t Group, 493 U.S. 120, 126 (1989) (court’s “task is to apply 

the text, not to improve” it). 

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making of the contribution which defines the crime in that section. 

B. NO COURT HAS HELD THAT SECTION 441F PROHIBITS 

REIMBURSING CAMPAIGN CONTRIBUTIONS MADE BY 

OTHERS USING THEIR TRUE NAMES. 

Because no court has held that Section 441f prohibits reimbursing 

campaign contributions made by others using their true names, the claim in 

this Court by government and amici, citing dicta in various decisions, that 

prior decisions are controlling authority is without merit. See Gov Br 34-38; 

FEC Br 14-18; CREW Br 12-14; CLC Br 15-18. 

In each case cited by the government or amici, any discussion of 

Section 441f, and any description of it as prohibiting “conduit 

contributions,” is no more than dicta in cases where the issue of whether 

Section 441f prohibits the conduct charged here was not contested and none 

involves a holding that Section 441f prohibits reimbursements. Indeed, the 

statement in a “seminal case” cited by the amici in their efforts to find 

contrary precedent—United States v. Hankin, 607 F.2d 611 (3d Cir. 1979)—

is a footnote in a dissent that simply notes, in dicta, the “inference” that a 

reimbursement was a contribution in the name of another. CREW Br 12-13 

(citing Hankin, 607 F.2d at 616 n.4 (Garth, C.J., dissenting)); see FEC Br 14 

(citing Hankin, 607 F.2d at 612); Hankin, 607 F.2d at 612 (the statute of 

limitations mooted substantive issues). 

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 Such “[d]ictum settles nothing, even in the court that utters it.” Jama 

v. ICE, 543 U.S. 335, 351 n.12 (2005).27 This is especially true where, as in 

the cases discussed below, the issue of whether Section 441f prohibits 

reimbursements of contributions was not contested. See, e.g., Cross v. 

Burke, 146 U.S. 82, 87 (1892) (“But the question of jurisdiction does not 

appear to have been contested in [Wales v. Whitney, 144 U.S. 564 (1885)] 

and, where this is so, the court does not consider itself bound by the view 

expressed.”).28

 

27 The Supreme Court has repeatedly held that a court is not bound by its 

prior dicta: “For the reasons stated by Chief Justice Marshall in Cohens v. 

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

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

See [id. at 399-400] (‘It is a maxim not to be disregarded, that general 

expressions, in every opinion, are to be taken in connection with the case in 

which those expressions are used. If they go beyond the case, they may be 

respected, but ought not to control the judgment in a subsequent suit when 

the very point is presented for decision[.]’).” Cent. Valley Cmty. Coll. v. 

Katz, 546 U.S. 356, 363 (2006); see Humphrey’s Ex’r v. United States, 295 

U.S. 602, 626-27 (1935). 

28 As noted, there are various statements referring to Section 441f as 

prohibiting conduit contributions and a number of individuals have pled 

guilty to violations of Section 441f (or paid civil penalties) based on 

reimbursements of contributions. FEC Br 9-10, 10 n.4; CREW Br 4, 4 n.1; 

CLC Br 18-20. Because FECA prohibits undisclosed conduit contributions 

or conduit contributions in excess of aggregate limits under Section 441a, 

there may be many reasons why those individuals took the actions they did 

in those cases. In any event, as noted, where an issue is not contested in a 

case, any views expressed by the court are not binding. Cross, 146 U.S. at 

87. Similarly, the fact that many courts or defendants may have assumed a 

statute applied is of no moment if the statutory language does not support 

(cont’d) 

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• McConnell v. FEC, 540 U.S. 93 (2003) (Gov Br 34; FEC Br 14; CLC 

Br 15-16). Striking a ban on contributions by minors, the Supreme 

Court suggested in dicta that there was little evidence of a need for 

this provision because such activities were deterred by the prohibition 

against making contributions in the name of another. 540 U.S. at 232. 

The Supreme Court’s suggestion that Section 441f applied to a 

contribution made by a parent in a child’s name is, in fact, consistent 

with Defendant’s interpretation of Section 441f and inconsistent with 

the government’s interpretation of Section 441f, because Section 441f 

does prohibit a contribution in the name of another. Even if the 

Supreme Court were addressing reimbursement by the parent of a 

contribution made in the child’s name (and there is no indication it 

was), the statement is dicta and the prohibitions in Section 441a would 

equally explain the lack of a need for the disputed provision. 

 

that view. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) 

(“since we have never squarely addressed the issue, and have at most 

assumed the applicability of the Chapman standard on habeas, we are free to 

address the issue on the merits”). Indeed, even where many courts have 

squarely upheld a particular statutory interpretation—which is not the case 

here—that is of no moment if that interpretation is contrary to the language 

of the statute. See, e.g., McNally v. United States, 483 U.S. 350, 358-61 

(1987) (restricting reach of mail fraud statute despite widespread judicial 

acceptance of contrary interpretation). 

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• Goland v. United States, 903 F.2d 1247 (9th Cir. 1990) (Gov Br 34-

35; FEC Br 14, 15-16; CREW Br 13; CLC Br 17-18). Goland 

allegedly made conduit contributions, and argued unsuccessfully that 

Section 441f violated his constitutional right to contribute to political 

campaigns anonymously. See 903 F.2d at 1252. This Court was not 

faced with the question of whether Section 441f in fact prohibited 

reimbursements and did not address that issue.29

• United States v. Serafini, 233 F.3d 758 (3d Cir. 2000) (Gov Br 36; 

FEC Br 14). This case involved an appeal from a conviction for 

 

29 The government asserts that even though the statement in Goland

describing Section 441f as a ban on conduit contributions is dicta, it is 

binding. Gov Br 37-38 (citing United States v. Bond, 552 F.3d 1092, 1096 

(9th Cir. 2009)). But this Court has made clear that even Supreme Court 

dicta is not binding. Newdow v. U.S. Congress, 328 F.3d 466, 489 (9th Cir. 

2003) (noting that Supreme Court dicta is owed “due deference”), rev’d on 

other grounds sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 

(2004); see Exp. Group v. Reef Indus., Inc., 54 F.3d 1466, 1472 (9th Cir. 

2004) (dictum has “no binding or precedential impact”). And, as noted 

above, supra note 27, the Supreme Court has repeatedly held that dictum is 

not binding “even in the court that utters it.” Jama 543 U.S. at 352 n.12. 

Barapind v. Enomoto, 400 F.3d 744 (9th Cir. 2005) (en banc) (per curiam), 

is not to the contrary. There, the court stated that: “In Quinn, the proper 

scope of ‘incidental to’ was an issue presented for review. We addressed the 

issue and decided it in an opinion joined in relevant part by a majority of the 

panel. Consequently, our articulation of ‘incidental to’ became law of the 

circuit, regardless of whether it was in some technical sense ‘necessary’ to 

our disposition of the case.” Id. at 750-51 (footnotes omitted). In Goland, 

whether Section 441f, as opposed to Section 441a, banned reimbursements 

was not raised or addressed by this Court. 

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perjury where interpreting Sections 441a or 441f was not an issue. 

See 233 F.3d at 762. 

• Mariani v. United States, 212 F.3d 761 (3d Cir. 2000) (Gov Br 36; 

FEC Br 14-15; CREW Br 13; CLC Br 16-17). As part of a discussion 

of the constitutionality of Section 441f, the court referenced the 

requirement of disclosure, a requirement only in Section 441a(a)(8). 

It is clear that the court made no determination as to whether conduit 

contributions were prohibited by Section 441f, where the Third 

Circuit’s entire pertinent statement was: “Proscription of conduit 

contributions (with the concomitant requirement that the true source 

of the contribution be disclosed) would seem to be at the very core of 

the Court’s analysis [in Buckley].” 212 F.3d at 775. 

• United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) (Gov 

Br 36; CREW Br 13). Kanchanalak is not relevant to interpretation of 

Sections 441f or 441a, which were not before that court reviewing 

convictions for false statements by foreign national contributors. See

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192 F.3d at 1040.30

• United States v. Curran, 20 F.3d 560 (3d Cir. 1994) (Gov Br 36); 

United States v. Curran, 1993 WL 137459 (E.D. Pa. April 28, 1993) 

(Gov Br 37). This case also involved convictions for making false 

statements, not for violating Section 441f. The description of Section 

441f on which the government relies is simply a footnote discussing 

the transfer of the campaign finance provisions from Title 18 to Title 

2. See 20 F.3d at 564 n.1. 

• United States v. Sun-Diamond Growers of Cal., 138 F.3d 961 (D.C. 

Cir. 1998) (Gov Br 36; FEC Br 14, 16-17). The defendant argued that 

it could not be vicariously liable under Section 441f for an employee’s 

actions that harmed Sun-Diamond. 138 F.3d at 970. The court did 

not address whether Section 441f prohibited reimbursements.

• United States v. Hsia, 176 F.3d 517 (D.C. Cir. 1999) (CREW Br 13); 

United States v. Hsia, 24 F. Supp. 2d 33 (D.D.C. 1998) (Gov Br 37); 

 

30 While Count Three of Defendant’s Indictment, which charged false 

statements, is not before this Court, the FEC nonetheless argues that the 

decision below was inconsistent in dismissing Counts One and Two but not 

Three. FEC Br 23-24. The FEC erroneously equates an unsuccessful 

motion to dismiss with an affirmative ruling that the conduct charged is 

sufficient for conviction. The ruling below indicates only that the conduct 

charged in Count Three (since dismissed) is sufficient to call for a trial on 

the merits. 

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United States v. Trie, 23 F. Supp. 2d 55 (D.D.C. 1998) (CREW Br 

14). These cases involved charges for false statements and/or 

conspiracy to defraud the United States, not violations of Section 

441f, and the courts had no occasion to consider the reach of Section 

441f or its interplay with Section 441a.

• United States v. Hsu, 2009 WL 2495794 (S.D.N.Y. Aug. 10, 2009) 

(Gov Br 37). The decision in this case involved a challenge to the 

sufficiency of the evidence, not any question of whether Section 441f 

prohibited reimbursements. See id. at *1-*2. Moreover, in contrast to 

the Indictment here, Mr. Hsu was charged in the operative counts with 

“making contributions . . . in the names of others,” United States v. 

Hsu, 2007 WL 4245863 (S.D.N.Y. Nov. 27, 2007) (Counts Thirteen, 

Fourteen and Fifteen), not with reimbursing others for contributions 

they had made.

• FEC v. Weinstein, 462 F. Supp. 243 (S.D.N.Y. 1978) (Gov Br 37; 

FEC Br 14). This case involved a constitutional vagueness challenge 

to Section 441f. The court rejected the challenge. 462 F. Supp. at 

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250. It did not address the interplay of Sections 441a and 441f.31

• Fieger v. Gonzales, 2007 WL 2351006 (E.D. Mich. Aug. 15, 2007) 

(Gov Br 37; FEC Br 14 n.6; CREW Br 13). This case involved the 

question of whether the Justice Department could investigate 

violations of the federal campaign finance laws before a referral from 

the FEC. The court did not interpret Section 441f.

• United States v. Johnston, 2008 WL 2544779 (E.D. Mich. June 20, 

2008) (CREW Br 13). This decision involved sentencing issues and 

includes no discussion of whether Section 441f prohibits 

reimbursements.

• FEC v. Kopko, Civ. No. 91-CV-7764 (E.D. Pa. May 22, 1992) (FEC 

Br 14 n.6). This was a stipulated order and did not involve discussion 

 

31 The court’s entire discussion was: 

For purposes of this motion it is assumed that 

defendant Weinstein directed his plant manager to 

make funds available to employees of Winfield so 

that those employees could send individual checks 

to the Sapp election committee. Defendants made 

those funds available to the manager. These acts 

demonstrate that defendants did comprehend the 

simple words: “No person shall make a 

contribution in the name of another.” 2 U.S.C. § 

441f. In any case, the court finds no ambiguity in 

the statutory language. 

462 F. Supp. at 250. 

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of any issue by the district court.

• FEC v. Wolfson, Civ. No. 85-1617-CIV-T-12 (M.D. Fla. Feb. 6, 1986) 

(FEC Br 17). The defendant did not respond, so this was essentially a 

default judgment,32 in which the court found violations of both 

Sections 441a and 441f without any discussion of the statutes or their 

differences.

C. THE STATE EXPERIENCE, CITED BY ONE AMICUS, 

SUPPORTS DEFENDANT’S INTERPRETATION, NOT THE 

GOVERNMENT’S. 

Although one amicus argues that analogous state statutes and 

decisions show that Section 441f’s language prohibits reimbursement of 

contributions, CREW Br 14-16 (claiming that “twenty-two states have 

incorporated the same or similar language [of Section 441f] into their own 

campaign finance laws”), the reality is far different. No state court has held 

that a reimbursement is a contribution in the name of another, and many of 

the cited state statutes, while prohibiting contributions “in the name of 

another,” include additional language not found in Section 441f to specify 

 

32 The FEC also cites a series of default judgments. FEC Br 17 (citing FEC 

v. Williams, Civ. No. 93-6321-ER (C.D. Cal. Jan. 31, 1995); FEC v. 

Lawson, Civ. No. 6:90-2116-9 (D.S.C. Apr. 8, 1991); FEC v. Rodriguez, 

Civ. No. 86-687-CIV-T-10 (M.D. Fla. Oct. 28, 1998)). As default 

judgments, these are not persuasive as to the proper interpretation of Section 

441f, let alone dispositive.

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the activity that is prohibited; some even explicitly prohibit 

“reimbursements.” 

• Haw. Rev. Stat. § 11-202: “No person shall make a contribution of 

the person’s own money or property, or money or property of another 

person . . . in any name other than the true name of the person who 

owns the money or who supplied the money or property.” This 

language plainly covers contributions pursuant to a reimbursement 

arrangement in a way that Section 441f does not. 

• Iowa Code § 68A.502: “A person shall not make a contribution . . . 

in the name of another person. . . . For the purpose of this section, a 

contribution . . . made by one person which is ultimately reimbursed 

by another person who has not been identified as the ultimate source . 

. . of the funds is considered to be an illegal contribution . . . in the 

name of another.” The second sentence would be superfluous if “in 

the name of another” already prohibited reimbursements. 

• Nev. Rev. Stat. § 294A.112: “1. A person shall not: (a) Make a 

contribution in the name of another person. . . . 2. As used in this 

section, ‘make a contribution in the name of another person’ includes, 

without limitation: (a) Giving money . . . all or part of which was 

provided by another person, without disclosing the source of the 

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money. . . .” Again, this definition would be superfluous if the 

language of Section 441f prohibited reimbursements. 

• N.J. Rev. Stat. § 19:44A-20: “No contribution of money . . . shall be 

made . . . whether anonymously, in a fictitious name, or by one 

person . . . in the name of another . . . . No individual . . . shall loan or 

advance to any individual . . . any money or other thing of value 

expressly for the purpose of inducing the recipient thereof . . . to 

make a contribution, either directly or indirectly . . . . No person shall 

contribute . . . funds or property . . . which has been given or 

furnished to him by any other person . . . for the purpose of making a 

contribution thereof . . . .” Again, this language plainly covers 

contributions pursuant to a reimbursement arrangement in a way that 

Section 441f does not. 

• S.D. Codified Laws § 12-27-12: “No person . . . may make a 

contribution in the name of another person,” or “make a contribution 

on behalf of another person. . . .” The addition of the “on behalf of 

another person” language indicates that the language of Section 441f 

standing alone would not prohibit such conduct. 

 Several state statutes add “directly or indirectly” to the prohibition on 

making a contribution in the name of another, in marked contrast to Section 

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441f. See, e.g., Fla. Stat. § 106.08(5)(a) (“A person may not make any 

contribution through or in the name of another, directly or indirectly, in any 

election.”) (emphasis added); La. Rev. Stat. Ann. § 18:1505.2(A)(1) (“No 

person shall give, furnish, or contribute monies . . . to . . . a candidate . . . 

through or in the name of another, directly or indirectly.”) (emphasis added); 

Mo. Rev. Stat. § 130.031(3) (“No contribution shall be made . . . directly or 

indirectly, in a fictitious name, in the name of another person, or by or 

through another person in such a manner as to conceal the identity of the 

actual source of the contribution . . . .”) (emphasis added); Conn. Gen. Stat. 

§ 9-622 (prohibiting an individual from “directly or indirectly, individually 

or through another person, mak[ing] a payment or promise of payment to a 

campaign treasurer in a name other than the person’s own . . .”) (emphasis 

added); Idaho Code Ann. § 67-6614 (“No contribution shall be made . . . 

directly or indirectly, in a fictitious name, anonymously, or by one (1) 

person through an agent, relative or other person in such a manner as to 

conceal the identity of the source of the contribution.”) (emphasis added); 

Wash. Rev. Code § 42.17.780 (“A person or entity may not, directly or 

indirectly, reimburse another person or entity for a contribution . . . . ”) 

(emphasis added). 

 Thus, the analogous state statutes make clear that Section 441f’s 

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prohibitions are narrow, and that the language does not “demonstrate[] 

breadth” as the government claims. Gov Br 25. Rather, the state statutes 

show a widespread recognition among state legislatures that Section 441f 

does not cover the conduct alleged in this case. 

 Cases interpreting these state statutes also fail to support amicus’ 

claim that the proper interpretation of “in the name of another” includes the 

conduct alleged in the Indictment. In the cited cases, much like the federal 

cases cited by the government, the defendants never directly challenged the 

interpretation of the statute and the courts did not address the issue. 

• Latchem v. State, 1999 WL 587238 (Alaska Ct. App. Aug. 4, 1999): 

The issue addressed was the applicable statute of limitations. The 

court did not address the proper interpretation of the prohibition 

against making contributions in the name of another. 

• State v. Azneer, 526 N.W.2d 298 (Iowa 1995). The issue addressed 

was the meaning of the word “willfully” in the enforcement provision 

of the campaign finance statute. The court did not address the proper 

interpretation of the prohibition against making contributions in the 

name of another. 

• State v. Palmer, 810 P.2d 734 (Kan. 1991). The issue addressed 

related to the statute of limitations and whether it was tolled by the 

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concealment doctrine. The court did not address the proper 

interpretation of the prohibition against making contributions in the 

name of another.33 

Thus, just as no federal court has held that Section 441f prohibits the 

alleged conduct, no state court interpreting similar statutory language has 

held that such language prohibits reimbursements.

D. THE FEC’S INTERPRETATION, WHICH IS CONTRARY TO 

THE PLAIN MEANING OF THE STATUTE, IS ENTITLED TO 

NO WEIGHT. 

 The government’s and amici’s heavy reliance on FEC advisory 

opinions and regulations, Gov Br 31-33; FEC Br 8-10; CREW Br 16-18; 

CLC Br 18-20, is also unavailing. Even if deference to an agency’s views 

were appropriate in criminal cases,34 agency interpretations that are 

inconsistent with clear and unambiguous statutory language are entitled to 

no weight. See Barnhart v. Walton, 535 U.S. 212, 217-18 (2002); Demarest 

 

33 The amicus brief also cites two non-judicial opinions. An Illinois opinion 

concludes that an arrangement between a corporation and a subsidiary is 

legal on a set of facts very different than the ones at issue. 1998 Ill. Att’y 

Gen. Op. 004, 1998 WL 205432, at *1 (Apr. 23, 1998). A Kansas opinion is 

of no persuasive value because the Kansas statutory scheme does not contain 

an analogue to Section 441a(a)(8). 1997 Kan. Comm’n on Gov’t Stds. and 

Conduct Op. No. 1997-45 (Sept. 11, 1997); see Kan. Stat. Ann. § 25-143 

(stating contribution limits, but not containing a provision regarding conduit 

contributions). 

34 See infra Part I.F. 

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v. Manspeaker, 498 U.S. 184, 190 (1991); Pub. Employees Ret. Sys. of Ohio 

v. Betts, 492 U.S. 158, 171 (1989) (superceded on other grounds by statute, 

see, e.g., EEOC v. Westinghouse Elec. Corp., 925 F.2d 619, 622 n.2 (3d Cir. 

1991)). Thus, an interpretation by the FEC that, as in this case, is contrary to 

the “plain meaning” of the statute must be rejected. See AFL-CIO v. FEC, 

177 F. Supp. 2d 48, 55 (D.D.C. 2001) (rejecting the FEC’s interpretation of 

FECA’s disclosure statute, 2 U.S.C. § 437g(a)(12)(A), because “upon 

examination of the traditional tools of statutory construction, including a 

review of the text, legislative purpose, and statutory context” the “plain 

meaning” of the statute prohibited disclosure), aff’d on other grounds, 333 

F.3d 168 (D.C. Cir. 2005) (holding that the statute was ambiguous, but the 

FEC failed to assuage First Amendment concerns).35

As the court below found: 

While these statements [from the FEC regulations 

and advisory opinions] may reflect the spirit of 

FECA, they do not accord with the plain language 

of § 441f read in conjunction with the sections of 

FECA expressly prohibiting “conduit” and 

 

35 The fact that Congress did not disapprove the regulation when it was 

initially submitted and re-enacted FECA without explicitly disapproving the 

interpretation does not save an agency interpretation that is contrary to the 

statutory language. See infra note 39. Moreover, here Congress added 

Section 441a(a)(8) when it re-enacted and amended Section 441f in 1974, 

showing that it did not share the FEC’s interpretation of Section 441f. See

supra notes 19, 21. 

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“indirect” contributions, as well as FECA’s 

legislative history. Moreover, because the plain 

language, structure, and legislative history of 

FECA demonstrate that “indirect” and “conduit” 

contributions are covered by other FECA sections 

but not by § 441f, deference to the FEC’s 

interpretation is not warranted. 

GER 7 (citations omitted).36

E. THE LEGISLATIVE HISTORY IS MIXED AND DOES NOT—

AND CANNOT—CONTRADICT THE PLAIN MEANING OF 

THE STATUTE. 

 The FEC admits that the legislative history of the 1971 enactment of 

what is now Section 441f is scant. FEC Br 28. The government and amici

thus spend much of their effort on post-enactment legislative “history,” upon 

which they rely heavily but which is neither controlling nor particularly 

illuminating as to what the enacting Congress intended. In any event, no 

legislative history can overwrite the plain meaning of the text of Section 

441f. As the Supreme Court has explained, “[w]hen we find the terms of a 

 

36 The FEC’s regulations, even if correct, would necessitate dismissal of the 

Indictment. Those regulations provide that where the conduit exercises 

direction or control over the choice of the ultimate recipient of the 

contribution, the contribution will be treated as a contribution from both the 

original source and the conduit. 11 C.F.R. § 110.6(d). That is, where, as 

alleged in the Indictment, the conduit does not exercise direction or control 

over the ultimate recipient but simply provides the money to the candidate 

requested, it is only a contribution from the original source, not the conduit. 

But the Indictment unmistakably and repeatedly alleges that the conduits 

made contributions. See supra 5-7. 

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statute unambiguous, judicial inquiry is complete . . . .” Rubin v. United 

States, 449 U.S. 424, 430 (1981). Where, as here, the statutory language is 

clear, “only the most extraordinary showing of contrary intentions from [the 

legislative history] would justify a limitation on the ‘plain meaning’ of the 

statutory language.” Garcia v. United States, 469 U.S. 70, 75 (1984). No 

such extraordinary showing has been made here. 

1. The legislative history of Section 441f contains no statements 

suggesting that it prohibits reimbursements. 

As cited by the government and amici, full disclosure of campaign 

contributions, including their source, was an objective of the 1971 FECA 

legislation. See Gov Br 47-49; FEC Br 25-27; CREW Br 6-8.37 

Nonetheless, the legislative history of the 1971 enactment of Section 441f 

contains no statements suggesting that it prohibits reimbursement. Indeed, 

the government concedes, as it must, that “[t]he government has found no 

relevant discussion of now-Section 441f in the 1971 Act’s legislative history 

. . . .” Gov Br 47.38

 

37 Much of this discussion is irrelevant, because Section 441f has neither 

reporting nor disclosure requirements designed to render campaign finance 

transparent. It is, rather, a ban on the decidedly opaque act of making a 

contribution using a false name. 

38 The FEC concedes that “very little legislative history from the 1971 

enactment specifically discusses the prohibition against contributions in the 

name of another . . . .” FEC Br 28. 

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Moreover, as the court below noted, there is relevant legislative 

history supporting the conclusion that Section 441f does not prohibit 

reimbursements: 

Even if the language of § 441f were ambiguous, 

the legislative history of FECA suggests that 

Congress did not intend § 441f to cover indirect 

contributions. After § 441f was introduced, 

Senator Scott stated that a “loophole” existed in 

the campaign contribution laws because a “man of 

influence” could evade contribution limits by 

giving his friends money and having them 

contribute an equal amount to his campaign. 117 

Cong. Rec. 29,295 (1971). If § 441f prohibited 

using one’s friends as conduits for contributions, 

there would be no “loophole” to fill. In addition, § 

441b’s predecessor, 18 U.S.C. § 610, prohibited 

contributions by national banks, corporations, and 

labor organizations. During debate on a proposed 

bill and amendment to add language defining 

“contribution” to “include any direct or indirect 

payment,” Senator Hansen was asked whether an 

employee could make a contribution and be 

reimbursed by his corporate employer. Hansen 

replied that doing so “would constitute a violation 

of law . . . as an indirect payment.” 117 Cong. 

Rec. 43,381 (1971) (emphasis added). Senator 

Hayes agreed. Id. This discussion demonstrates 

that Congress used the term "indirect" to cover 

reimbursements. 

GER 5. 

The government and amici argue at length that this pertinent 

legislative history should not be accorded weight. Gov Br 49-52; FEC Br 26 

n.8. But even if not dispositive, it is more compelling than the legislative 

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history cited by the government and amici in support of their position 

because it is contemporaneous with the statute at issue. At best, from the 

government’s perspective, the legislative history is mixed and cannot 

contradict the plain meaning of Sections 441a and 441f. 

2. The subsequent legislative history relied on by the government 

is of limited interpretive value and cannot overcome the plain 

meaning of the statute. 

The government and amici also rely on legislative “history” postdating the enactment of Section 441f, principally the amendment to FECA 

increasing the penalties for violations of Section 441f in a section entitled 

“Increase in Penalties Imposed for Violations of Conduit Contribution Ban.” 

Gov Br 54; FEC Br 29; see CREW Br 9-12.39 There are three 

insurmountable problems with this reliance. 

 First, even if the section’s title meant what the government suggests, 

 

39 The government and amici also argue that, because Congress amended 

FECA without modifying Section 441f after the FEC interpreted Section 

441f to ban conduit contributions, Congress has adopted or ratified that 

interpretation. See, e.g., Gov Br 32-33, 53. Re-enactment, however, does 

not effect the adoption of an interpretation that is contrary to the statutory 

language. Demarest v. Manspeaker, 498 U.S. 184, 190 (1991) (“Where the 

law is plain, subsequent reenactment does not constitute an adoption of a 

previous administrative construction.”); Leary v. United States, 395 U.S. 6, 

25 (1969) (“re-enactment cannot save a regulation which ‘contradict[s] the 

requirements’ of the statute itself. When a regulation conflicts with the 

statute, the fact of subsequent re-enactment ‘is immaterial, for Congress 

could not add to or expand [the] statute by impliedly approving the 

(cont’d) 

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“we begin with the oft-repeated warning that ‘the views of a subsequent 

Congress form a hazardous basis for inferring the intent of an earlier one.’” 

Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 117-

18 (1980) (citations omitted).40

 

regulation.’”) (citations omitted) (brackets in original). 

40 The government concedes that “later legislative history is generally a 

weak indicator of the intent of an earlier Congress . . . .” Gov Br 53. 

Moreover, other subsequent legislative history cited by the government or 

amici does not support their interpretation, even were such subsequent 

history entitled to weight. 

For example, the FEC and the government quote the statement of 

Representative Mathis during the 1976 debates that “there is a provision in 

the law that provides for criminal penalties for using another as a conduit for 

funds. One cannot give money for another.” FEC Br 28 (citing 122 Cong. 

Rec. H2606 (daily ed. Mar. 31, 1976)); Gov Br 53 (same, but omitting “. . . 

for funds. One cannot give money for another.”). The FEC (but not the 

government) notes that Representative Mathis did not identify the provision 

to which he was referring, but then asserts that it was Section 441f, FEC Br 

28 n.11, even though Section 441f does not use the word “conduit” that 

Representative Mathis used, but Section 441a does. 

The same is true of Senator Clark’s comments on March 17, 1976. See

CREW Br 9. Although he referred to a prohibition on earmarking, there is 

no indication that he was referring to Section 441f rather than Section 441a. 

The bill he referenced, see 122 Cong. Rec. 4,870-71 (1976) (S. 3065, 94th 

Cong. § 111 (1976), as reported out of committee on March 2, 

1976), contains the word “earmark” under Section 441a (the section titled 

“Limitations on contributions and expenditures”), not Section 441f (the 

section titled “Contributions in name of another prohibited”), making it more 

likely that he was referring to Section 441a. 

(cont’d) 

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 Second, it is well settled that “[t]he heading of . . . a statute is not 

controlling when it contradicts the plain meaning of the words of the law, 

particularly where, as here, the error is easily explained by reference to 

legislative history.” Habib v. Raytheon Co., 616 F.2d 1204, 1210 n.8 (D.C. 

Cir. 1980); see generally Bhd. of R.R. Trainmen v. Baltimore & O. R. Co.,

331 U.S. 519, 528-29 (1947) (“the title of a statute and the heading of a 

section cannot limit the plain meaning of the text”). The government 

concedes as much: “a heading cannot ‘substitute for the operative text.’” 

Gov Br 26 (quoting Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 128 

S. Ct. 2326, 2336 (2008)).41

 Finally, even if neither of these considerations applied, the legislative 

history cannot contradict the statute’s plain meaning. Even if Congress in 

2002 thought the provision for which it was increasing penalties (Section 

 

The government also quotes H.R. Rep. No. 93-1239, concerning the 1974 

amendments, to the effect that “The bill prohibits contributions in the name 

of another and provides that, for the purposes of limitations and reporting 

requirements, any contribution by a person which is earmarked or directed 

through an intermediary or conduit to a candidate shall be treated as a 

contribution from such person.” Gov Br 46-47. It is unclear how this 

straightforward description of Sections 441f and 441a(a)(8) supports the 

government’s interpretation of the statutory language. 

41 In this regard, it is puzzling that the government would put such great 

weight on the presence of the word “conduit” in the heading for a provision 

increasing the penalty for violations of Section 441f, Gov Br 26-27, while 

ignoring its presence in Section 441a(a)(8) and its absence in Section 441f. 

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441f) dealt generally with conduit contributions, it was incorrect in that 

understanding given the plain meaning of Sections 441a and 441f.42

F. THE DECISION BELOW DOES NOT CREATE ANY 

OBSTACLE TO ENFORCEMENT OF FECA AND RELEVANT 

JURISPRUDENTIAL PRINCIPLES FAVOR APPLICATION 

OF THE RULE OF LENITY. 

The government and amici rely heavily on FECA enforcement 

considerations, contending that construing Section 441f as not prohibiting 

reimbursements would create a “loophole” in the campaign finance laws that 

would render contribution limits “meaningless.” CREW Br 2.43 Even if this 

argument were correct, it could not justify interpreting a statute contrary to 

its plain terms. But the government’s and amici’s argument is simply 

wrong. 

 

42 For the same reasons that the enactment of enhanced penalties sheds no 

light on the meaning of Section 441f, the isolated legislative statements cited 

by amicus regarding the penalties, CREW Br 10-11, likewise are of no 

interpretive value. Indeed, other than simply using the term “conduit,” some 

do not discuss what conduct would fall within that term. 

43 See also CLC Br 20 (“If the District Court’s misinterpretation of Section 

441f stands, FECA’s contribution limits and disclosure requirements will be 

seriously undermined . . . .”); FEC Br 1, 5 (“[T]he district court’s 

unprecedented interpretation of section 441f . . . could undermine the 

government’s ability to fulfill the policies of deterring actual and apparent 

corruption . . . .”; “the decision below . . . emasculates FECA’s disclosure 

requirements”); CREW Br 2 (“If upheld, the ruling would have a disastrous 

impact on the ability of the Department of Justice and the FEC to enforce 

[FECA]”.). Given that Section 441a prohibits the conduct alleged, there is 

no explanation for how these alarmist statements can be correct. 

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Section 441a explicitly prohibits hidden reimbursements and 

exceeding contribution limits and, thus, addresses the government’s 

concerns. There is no “loophole” in FECA. The government simply needs 

to charge a campaign contribution reimbursement scenario using the 

applicable provisions of the statute.44

What the government and amici fail to address are the paramount 

jurisprudential principles supporting the District Court’s ruling. In criminal 

cases, constitutional concerns have long dictated that statutes be construed 

narrowly, especially in the First Amendment context. As the Supreme Court 

explained in McNally: 

The Court has often 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. . . . As the Court said in a mail fraud 

case years ago: “There are no constructive 

offenses; and before one can be punished, it must 

 

44 The alarmist statements by amici ignore this point. It is incorrect to 

suggest that the “practical effect of the [decision below]” is that “Section 

441a(a)(8) may serve as a shield to conceal a contributor’s identity.” CLC 

Br 12. Because Section 441a(a)(8) affirmatively requires disclosure of the 

“original source” of any contribution, the decision below could not possibly 

allow Section 441a(a)(8) to conceal that contributor’s identity. Similarly, 

any claim that the decision below jeopardizes or renders impossible 

convictions for the use of undisclosed conduits, CREW Br 3, ignores the fact 

that violations of Section 441a(a)(8) are crimes—the only difference being 

that the penalty for the felony offense under Section 441f starts at $10,000, 

compared to $25,000 under Section 441a. 

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be shown that his case is plainly within the 

statute.” Fasulo v. United States, 272 U.S. 620, 

629 (1926). Rather than construe the statute in a 

manner that leaves its outer boundaries ambiguous 

and involves the Federal Government in setting 

standards of disclosure and good government for 

local and state officials, we read [18 U.S.C.] § 

1341 as limited in scope to the protection of 

property rights. If Congress desires to go further, it 

must speak more clearly than it has. 

483 U.S. at 359-60 (citations omitted) (emphasis added). 

More generally, the rule of lenity is fundamental to due process and 

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. . . . This 

venerable rule not only vindicates the fundamental 

principle that no citizen should be held 

accountable for a violation of a statute whose 

commands are uncertain, or subjected to 

punishment that is not clearly prescribed. It also 

places the weight of inertia upon the party that can 

best induce Congress to speak more clearly and 

keeps courts from making criminal law in 

Congress’s stead . . . . We interpret ambiguous 

criminal statutes in favor of defendants, not 

prosecutors. 

United States v. Santos, 128 S. Ct. 2020, 2025, 2026, 2028 (2008) (plurality 

op.) (emphasis added and citations omitted); see United States v. Bass, 404 

U.S. 336, 347 (1971). 

 While the rule of lenity applies to the construction of criminal statutes 

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generally, the First Amendment also dictates, in this case, that ambiguities 

be resolved in Defendant’s favor to avoid an inappropriate chilling effect on 

constitutionally protected political activities. Buckley, 424 U.S. 1, 40-41, 

77-78 (1976); United States v. Kokinda, 497 U.S. 720, 725 (1990) 

(“Solicitation is a recognized form of speech protected by the First 

Amendment.”) (citations omitted); Emily’s List v. FEC, 581 F.3d 1, 4 (D.C. 

Cir. 2009) (“The First Amendment, as interpreted by the Supreme Court, 

protects the right of individual citizens to spend unlimited amounts to 

express their views about policy issues and candidates for public office.”); 

see AFL-CIO v. FEC, 333 F.3d 168, 179 (D.C. Cir. 2003) (FEC regulation 

interpreting FECA section invalid due to the agency’s failure to undertake 

First Amendment “tailoring”). Accordingly, Section 441f must be narrowly 

interpreted so as to limit the restrictions on constitutionally-protected speech 

to the text of the statute. 

 The government argues that, if there is ambiguity, deference to the 

FEC trumps application of the rule of lenity. Gov Br 19, 56 (citing 

Pacheco-Camacho v. Hood, 272 F.3d 1266 (9th Cir. 2001)). Defendant 

respectfully submits that relevant jurisprudential considerations dictate 

otherwise and that the authority in this Circuit on which the government 

relies can be distinguished and should be confined to its factual context. 

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 In Pacheco-Camacho, the Ninth Circuit did not apply the rule of 

lenity to the Bureau of Prisons’ (“BOP”) interpretation of a statute in a 

manner that reduced prisoners’ good behavior credit because the BOP 

“resolved” the ambiguity “through a reasonable interpretation.” 272 F.3d at 

1271-72 (regarding 18 U.S.C. § 3624). The statute at issue in PachecoCamacho, however, is not a criminal statute. See Perez-Olivo v. Chavez, 

394 F.3d 45, 53 (1st Cir. 2005) (reaching the same interpretation as 

Pacheco-Camacho but holding that Section 3624 “is not . . . a ‘criminal’ 

statute, and thus we do not believe the rule of lenity would apply.”).45 Nor 

do the purposes underlying the rule of lenity concern conduct such as 

awarding good behavior credits. For example, Pacheco-Camacho had 

already “run afoul” of a “penal law[]” and the BOP—not the court—had 

discretion to determine Pacheco-Camacho’s remaining sentence. Cf.

Pacheco-Camacho 272 F.3d at 1271; see United States v. Kozminski, 487 

U.S. 931, 952 (1988) (the rule of lenity “promote[s] fair notice to those 

 

45 Pacheco-Camacho cites a footnote in Babbitt v. Sweet Home Chapter of 

Communities for a Great Oregon for the proposition that deference trumps 

lenity. 272 F.3d at 1271-72 (citing 515 U.S. 687, 704 n.18 (1995)). In 

Babbitt, the Supreme Court noted the absence of prior authority requiring 

that the rule of lenity “provide the standard for reviewing facial challenges 

to administrative regulations,” 515 U.S. at 704 n.18, but this footnote does 

not hold that no circumstances could exist under which agency deference 

would violate the rule of lenity, and it should not be interpreted in a manner 

(cont’d) 

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subject to the criminal laws, . . . minimize[s] the risk of selective or arbitrary 

enforcement, and . . . maintain[s] the proper balance between Congress, 

prosecutors, and courts” ). 

 In contrast with the good behavior statute, Defendant has been 

charged with violating Section 441f, a felony. Accordingly, Section 441f’s 

interpretation should be constrained by the rule of lenity, rather than 

expanded by agency deference. 

 Other circuits have held that, in certain circumstances, agency 

deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 

837 (1984), is inappropriate when interpreting an ambiguous criminal 

statute, and that, instead, the rule of lenity should apply. Dolfi v. Pontesso, 

156 F.3d 696, 700 (6th Cir. 1998); United States v. McGoff, 831 F.2d 1071, 

1077, 1080 n.17, 1084 n.22 (D.C. Cir. 1987). Prior to examining the 

legislative history as an aid in interpreting an ambiguous criminal statute, the 

D.C. Circuit explained that: 

[W]hile courts recognize the inevitability and, in 

certain contexts, the desirability of legislation that 

leaves some details to be resolved as the statute is 

applied, there are limits. Those limits are most 

graphic in cases involving criminal sanctions. . . . 

In the criminal context, courts have traditionally 

required greater clarity in draftsmanship than in 

 

inconsistent with other Supreme Court precedents, see infra note 46. 

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civil contexts, commensurate with the bedrock 

principle that in a free country citizens who are 

potentially subject to criminal sanctions should 

have clear notice of the behavior that may cause 

sanctions to be visited upon them. . . . [T]he law of 

crimes must be clear. There is less room in a 

statute’s regime for flexibility, a characteristic so 

familiar to us on this court in the interpretation of 

statutes entrusted to agencies for administration. 

We are, in short, far outside Chevron territory 

here. 

McGoff, 831 F.2d at 1077 (citations omitted) (interpreting the Attorney 

General’s application of the Foreign Agents Registration Act to a newspaper 

publisher). Similarly, the Sixth Circuit held in Dolfi that, “[u]nlike 

environmental regulation or occupational safety, criminal law and the 

interpretation of criminal statutes is the bread and butter of the work of 

federal courts.” 156 F.3d at 700.46 Moreover, the circumstances in this case 

render the FEC analogous to the Justice Department in its prosecutorial role, 

as to which no deference is due in interpreting criminal statutes generally. 

See Crandon v. United States, 494 U.S. 152, 177 (1990) (Scalia, J., 

 

46 Other fundamental canons of construction also preclude Chevron

deference. See Solid Waste Agency v. United States Army Corps of Eng’rs, 

531 U.S. 159, 174 (2001) (“We thus read the [Clean Water Act] as written to 

avoid the significant constitutional and federalism questions raised . . . and 

therefore reject the request for administrative deference.”); DeBartolo Corp. 

v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 574-75 

(1988) (Chevron deference not appropriate when in conflict with the canon 

of constitutional avoidance). 

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concurring) (“The Justice Department, of course, has a very specific 

responsibility to determine for itself what this statute means, in order to 

decide when to prosecute; but we have never thought that the interpretation 

of those charged with prosecuting criminal statutes is entitled to 

deference.”). 

 Even if agency deference was given precedence generally, the 

government’s argument fails here because, as detailed above, its 

interpretation of the statute is at odds with its express terms. See supra Part 

I.D.; cf. AFL-CIO, 177 F. Supp. 2d at 55.

II 

EVEN IF SECTION 441F COULD BE READ TO 

PROHIBIT REIMBURSEMENTS, THE 

INDICTMENT BELOW WOULD STILL BE 

DEFECTIVE AND HAVE BEEN PROPERLY 

DISMISSED. 

A. LEGAL STANDARD 

 An indictment must sufficiently allege the facts constituting a 

violation of the cited statute, and the sufficiency of an indictment should be 

tested solely on the basis of the allegations on its face. See United States v. 

Sampson, 371 U.S. 75, 78-79 (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 

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F.2d 1200, 1202 n.1 (9th Cir. 1976). Although an indictment may track the 

language of a statute to describe a criminal offense, “it must be accompanied 

with such a statement of the facts and circumstances as will inform the 

accused of the specific offence, coming under the general description, with 

which he is charged.” Hamling v. United States, 418 U.S. 87, 117-18 (1974) 

(internal quotation marks omitted); Russell v. United States, 369 U.S. 749, 

764 (1962) (“Where guilt depends so crucially upon such a specific 

identification of fact, our cases have uniformly held that an indictment must 

do more than simply repeat the language of the criminal statute.”). 

 Moreover, as this Court has explained, “[a]n 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). Courts require 

such specificity because: 

To allow a prosecutor or court to make a 

subsequent guess as to what was in the minds of 

the grand jury at the time they returned the 

indictment would deprive the defendant of a basic 

protection that the grand jury was designed to 

secure, because a defendant could then be 

convicted on the basis of facts not found by, and 

perhaps not even presented to, the grand jury that 

indicted him. 

United States v. Keith, 605 F.2d 462, 464 (9th Cir. 1979). 

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B. THE FACTUAL ALLEGATIONS IN THE INDICTMENT ARE 

OF ILLEGAL REIMBURSEMENTS, NOT ILLEGAL 

CONTRIBUTIONS. 

 The Indictment does not charge Defendant with making contributions; 

rather, it charges him with reimbursing contributions made by others. 

Repeatedly, the Indictment charges that Defendant and others solicited 

individuals to make contributions and that Defendant then reimbursed those 

individuals. See supra at 5-7.47 

 Thus, even if Section 441f prohibited making contributions by 

reimbursing others, it would not save this Indictment because the facts of it 

would not charge Defendant with such an offense. The factually charging 

language—reimbursing in one’s own name contributions previously made 

by others in their own names—is not proscribed by Section 441f. This 

variance between the charged conduct and the charged statute is fatal and is 

an independent basis for affirming the decision below. 

CONCLUSION 

 For the foregoing reasons, the decision below should be affirmed. 

Dated: November 9, 2009 Respectfully submitted, 

 /s/ George J. Terwilliger III 

 GEORGE J. TERWILLIGER III 

 

47 As noted above, the FEC’s regulations contradict this pleading theory. 

See supra note 36. 

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59

 DANIEL B. LEVIN

 DARRYL S. LEW, on the brief 

 MICHAEL H. HUNEKE, on the brief 

 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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Form 8. Certificate of Compliance Pursuant to Fed. R. App. P. 32(a)(7)(C) and Circuit

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__________________________ _________________________________

Date Signature of Attorney or 

Unrepresented Litigant

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CERTIFICATE OF SERVICE

 I hereby certify that on November 9, 2009, I electronically filed the 

foregoing with the Clerk of the Court for the United States Court of Appeals for 

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GEORGE J. TERWILLIGER III 

WHITE & CASE LLP 

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Telephone: (202) 626-3628 

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E-mail: gterwilliger@whitecase.com 

Attorney for Defendant-Appellee 

PIERCE O’DONNELL

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