22

- 666

- cr United States v. Kukushkin

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3

____________________ 4
5 August Term, 20 2 2 6
7 (Argued: September 15, 2022 Decided: March 8, 2023 ) 8
9 Docket No . 22

- 666

- cr 10
11

____________________ 12
13 U NITED STATES OF AMERICA, 14
15 Appellee , 16
17

v. 18
19 ANDREY KUKUS H KIN , 20
21 Defendant

- Appellant

. 1 22
23
24

____________________ 25
26 Before: POOLER, LOHIER, and NATHAN, Circuit Judges

. 27
28 The Federal Election Campaign Act (“FECA”) requires that a defendant act 29
willfully to be guilty of aiding and abetting the making of a campaign 30

1 The Clerk of the Court is directed to amend the caption as above.2 contribution by a foreign national. 52 U.S.C. § 30109(d)(1)(A). Andrey Kukushkin 1
appeals from the March 15, 2022 judgment entered in the United States District 2
Court for the Southern District of New York (J. Paul Oetken, J .) following a jury 3

trial where he was convicted of one count of conspiring to illegally donate 4
monies to a political campaign in violation of 52 U.S.C. §§ 30121 , 30122 and 18 5
U.S.C. § 371 and one count of aiding and abetting over $25,000 of such donations 6
in violation of 52 U.S.C. § 30121 and 18 U.S.C. § 2. 7
In this opinion, we address Kukus h kin’s argument that the district court 8

erred in giving the standard jury instruction on willfulness: that “ a person acts 9

‘ willfully ’ when he acts with a ‘ bad purpose ’ to disobey or disregard the law. It is 10
not, however, necessary for the government to prove that the defendant was 11
aware of the specific p rovision of the law that he is charged with violating. ” 12
App’x at 118

- 19. Because FECA is a highly technical statute, akin to federal 13
criminal tax laws, Kukushkin argues that a heightened standard of willfulness is 14
require d , similar to the charge provided f or certain tax crimes. See , e.g. , Cheek v. 15

United States , 498 U.S. 192 , 206

- 07 (1991)

. Rather than the standard willfulness 16
charge, Kukushkin argues the district court should have charged the jury that it 173 must find he knew the meaning and existence of the specific FECA provisions he 1
allegedly violated, or conspired to violate. 2
Kukushkin also challenges the district court’s refusal to 1) instruct the jury 3

that for c ount o ne, a co

- conspirator must knowingly and willfully join the 4
conspiracy with the “intent[] of achieving [the alleged conspiracy’s] unlawful 5
objectives, namely viol ation of the federal election laws ; ” App’x at 104 , and 2) to 6
provide a good faith defense charge. 7
As we find no error with the district court’s charge, we affirm. The 8
remaining issues Kukushkin raises on appeal are addressed in a summary order 9
also issued today. 10

Affirmed. 11

____________________ 12

CELESTE L.M. KOELEVELD , Clifford Chance US LLP 13 (Ivana Djak , Alexandra Day Coyle, on the brief ), New 14 York, NY, for Appellant

. 15
16 ALINE R. FLODR , Assistant United States Attorney 17 ( Nicholas Roos, Hagan Scotten, Danielle R. Sassoon , 18 Assistant United States Attorneys, on the brief ), for 19 Damian Williams , United States Attorney for the 20 Southern District of New York , New York, NY, for 21 Appellee

. 22
234 POOLER, Circuit Judge : 1
The Federal Election Campaign Act (“FECA”) requires that a 2
defendant act willfully to be guilty of aiding and abetting the making of a 3
campaign cont ribution by a foreign national. 52 U.S.C. § 30109(d)(1)(A). Andrey 4
Kukushkin appeals from the March 15, 2022 judgment entered in the United 5
States District Court for the Southern District of New York (J. Paul Oetken, J .) 6
following a jury trial where he was convicted of one count of conspiring to 7
illegally donate monies to a political campaign in violation of 52 U.S.C. §§ 30121 , 8
30122 and 18 U.S.C. § 371 and one count of aiding and abetting over $25,000 of 9
such donations in violation of 52 U.S.C. § 30121 and 18 U.S.C. § 2. 10
In this opinion, we address Kukushkin’s argument that the district court 11
erred in giving the standard jury instruction on willfulness: that “ a person acts 12

‘ willfully ’ when he acts with a ‘ bad purpose ’ to disobey or disregard the law. It is 13
not, however, necessary for the government to prove that the defendant was 14
aware of the specific provision of the law that he is charged with violating. ” 15
App’x at 118

- 19. Because FECA is a h ighly technical statute, akin to federal 16
criminal tax laws, Kukushkin argues that a heightened standard of willfulness is 17
required, similar to the charge provided for certain tax crimes. See, e.g. , Cheek v. 185 United States , 498 U.S. 192 , 206

- 07 (1991) . Ra ther than the standard willfulness 1
charge, Kukushkin argues the district court should have charged the jury that it 2
must find he knew the meaning and existence of the specific FECA provisions he 3
allegedly violated, or conspired to violate. 4

Kukushkin also c hallenges the district court’s refusal to 1) instruct the jury 5

that for c ount o ne, a co

- conspirator must knowingly and willfully join the 6
conspiracy with the “intent[] of achieving [the alleged conspiracy’s] unlawful 7
objectives, namely violation of the federal election laws ; ” App’x at 104, and 2) to 8
provide a good faith defense charge. 9
As we find no error with the district court’s charge, we affirm. The 10
remaining issues Kukushkin raises on appeal are addressed in a summary order 11
also issued today. 12

B ACKGROUND 13
The jury found that Kukus h kin conspired with his co

- defendants , Lev 14
Parnas and Igor Fruman, to illegally donate Russian national Andrey Muraviev’s 15
money to a number of political candidates in states where the defendants 16
planned to seek licenses to operate cannabis

- related business es

. Kukus h kin was 17
also convicted of aiding and abetting in the use of Muraviev’s money to make 186 illegal political contributions without disclosing Muraviev’s name. A thorough 1
discussion of the underlying facts in this matter is found in the district court’s 2
opinion

. See United States v. Parnas , No. 19

- CR

- 725, 2022 WL 669869 (S.D.N.Y. 3

Mar. 7, 2022). We discuss only the facts necessary to explain our analysis

. 4

T he government introduced evidence at trial demonstrating that in 2018, 5

Kukushkin

— who represented Muraviev’s interests in the United States

— entered 6
into an agreement with Parnas and Fruman to funnel Muraviev’s money to 7
American politicians

. As detailed below, the group coordinated their plans 8
through in

- person meetings and regular electronic communications , resulting in 9
Kukushkin help ing to arrange the transfer of one million dollars from Muraviev 10
to Parnas, Fruman, and their associate David Correia . Of that, roughly $15 0,000 11

was used to fund donations to American political candidates in the 2018 election 12
cycle

. 13
The government introduced a number of communications between the 14
defendants at trial to support its argument that Muraviev’s money was intended 15

for , and used in part for, political donations. For example , Kukushkin texted 16

Parnas: “Leva, the money where wired to Global Energy”

— a company 17
controlled by Parnas and Fruman

— “in order to cover all the donations 187 whatsoever , ” App’x at 202; “please allocate 10% of the exi sting donation funds , ” 1
App’x at 165 ; “[w]e were supposed to tell [a political candidate] that the check(s) 2

from Global are indeed the donations from us , ” App’x at 203 ; “ t he money was 3
transferred ~$1M to Lev [Parnas’s] & Igor [Fruman]’s company a long time ago 4
to cover all the contributions as planned , ” App’x at 189. Kukushkin told Fruman 5

and Parnas that “ [y] ou are the one issuing [the politicians] the checks NOT me or 6
Andrey [Muraviev].” App’x at 202. Kukushkin directed Fruman and Parnas to 7

make clear that any donations from Global Energy were actually intended for the 8

benefit of the cannabis venture. A communication in late October 2018 from 9
Kukushkin to Parnas and Fruman stated that the two had “clarity from day 1” 10
about their “precise course of action,” w hich was “ [ m ] oney transferred by 11
Andrey M [Muraviev] to Global Energy” in order “to support the very specific 12
people & states (per Igor’s table) in order to obtain green light for licensing.” 13
App’x at 194. 14
“Igor’s table” referenced charts put together by Fruman to outline 15
intended political donations funded with the “money transferred by” Muraviev 16

in order to secure licenses for the cannabis business. App’x at 194. One such chart 17

was entitled “Cannabis Schedule and b udget.” App’x at 147, 156.1. Kukushkin 188 sent Muraviev a copy of that chart, with a note that it was “necessary” to 1

“confirm th e transfer” of $500,00 0 to “the guys.” App’x at 156.1. Muraviev, both 2

individua lly and in groups, corresponded with defendants about the donations. 3
The government also introduced evidence that Kukushkin and the other 4
conspirators worked to conceal Muraviev’s role in the cannabis venture, even 5
though Muraviev participated openly in other U.S. cannabis businesses. 6

Kukushkin instructed Fruman and Parnas no donations were to be made in 7

Muraviev’s name

. Muraviev moved the money for political contributions from 8
companies in Cyprus through a bank account controlled by Fruman’s brother. 9

Kukushkin discussed omitt ing Muraviev’s name from the corporation being 10
formed for the cannabis venture, and his name ultimately was omitted. Other 11

evidence demonstrated that Fruman and Parnas made political donations that 12

were funded or reimbursed by Muraviev, including donations to the Protect the 13
House joint fundraising committee, Friends of Ron DeSantis , a s well as to Adam 14

Laxalt , then

- Attorney General of Nevada, and Wes Duncan , who was running 15
for Nevada Attorney General

. 16
After the jury convicted Kukushkin , he moved for acquittal or a new trial. 17

The district court denied both motions. Parnas , 2022 WL 669869 , at * 10. 189 Kukushkin was sentenced to a year and a day imprisonment and fined $10,000

. 1
This appeal followed. 2

ANALYSIS 3

F EC A makes it illegal to engage in certain conduct related to political 4

donations. As relevant here, foreign nationals are barred from “directly or 5
indirectly” donating in federal , state or local elections. 52 U.S.C. § 30121(a ). It is 6

also illegal to make a “contribution in the name of another person.” 52 U.S.C. § 7

30122 . Criminal penalties of up to five years’ imprisonment attach to violations of 8

Sections 30121 and 30122 where 1) the donations amount to $25,000 or more in 9
one calendar year, and 2) the person acts “ knowingly and willfully. ” See 52 10
U.S.C. § 30109(d)

. 11

Count o ne of the indictment charged Kukushkin with conspiring to make 12
contributions by a foreign national in violation of 18 U.S.C. § 371. It alleged the 13
conspiracy had three obje cts: 1) to knowingly and willfully make political 14
donations by a foreign national of at least $25,000 in a calendar year, in 15

connection with federal and s tate elections, in violation of 52 U.S.C. § 30121 ; 2) to 16
knowingly and willfully make political donations in the names of other persons 17
of at least $25,000 in a calendar year, in violation of 52 U.S.C. § 30122 ; and 3) to 1810 knowingly defraud the United States by i nterfering with t he Federal Election 1

Commission ’ s function to administer federal law concerning monetary source 2

and amount restrictions in federal and s tate elections, including the prohibitions 3
applicable to foreign nationals and straw donors

. Count Three charged 4

Kukus h kin with knowingly and willfully aiding and abetting the solicitation of 5

over $25,000 in such donations in violation of 52 U.S.C. § 30121 and 18 U.S.C. § 2. 6

At issue here is what constitutes acting “knowingly and willfully” to 7

violate FECA. Kukushkin requested a jury instruction charging that the 8
government needed to prove a “heightened standard of willfulness .” App’x at 9

103. B ecause the election and campaign finance laws are highly technical and 10
complex , he argued, the jury charge should direct he could be con victed only 11

upon a showing that he knew of the existence and meaning of the FECA 12
provisions he was charged with violating and conspiring to violate . App’x at 103. 13

He also asked the district court to instruct the jury that a co

- conspirator must 14
knowingly an d willfully join the conspiracy with the “intent[] of achieving [the 15
alleged conspiracy’s] unlawful objectives, namely violation of the federal election 16

laws.” App’x at 104. Finally, Kukushkin asked the district court to give a good 17

faith defense instructi on. 1811 The district court declined each of Kukus h kin’s requests, and instead gave 1

the standard general willfulness charge: 2
An act is done willfully if the defendant acted with 3 knowledge that some part of his course of conduct was 4 unlawful and with the intent to do something the law 5 forbids, and again not by mistake or accident. In other 6 words, a person acts “willfully” when he acts with a 7 “bad purpose” to disobey or disregard the law. It is not, 8 however, necessary for the government to prove that 9 the de fendant was aware of the specific provision of the 10 law that he is charged with violating. Rather, it is 11 sufficient for the defendant to act knowing that his 12 conduct is unlawful, even if he does not know precisely 13 which law or regulation makes it so. 14
15 App’x at 118

- 19. As to conspiratorial intent, the district court charged that: 16

The second element the government must prove 17 beyond a reasonable doubt to establish the offense of 18 conspiracy is that the defendants knowingly, willfully 19 and voluntarily became members of the alleged 20 conspiracy with the intent of achieving its unlawful 21 objective. I have already instructed you on the 22 definitions of knowingly and willfully, and you should 23 apply those definitions here. 24
25 App’x at 121

- 22. The district court declined to give a good faith instruction. 26
Kukushkin argues that the district court’s refusal to instruct the jury 27

as he requested constitutes revers i ble error. 2812 “ We review a claim of error in jury instructions de novo , reversing onl y 1
where, viewing the charge as a whole, there was a prejudicial error.” United 2

States v. Aina

- Marshall , 336 F.3d 167, 170 (2d Cir. 2003) . When a district court 3
declines to deliver a requested instruction, a defendant bears the “heavy burden” 4
of showing that the charge given was prejudicial. United States v. Feliciano , 223 5
F.3d 102, 116 (2d Cir. 2000) . “A conviction will not be overturned f or refusal to 6
give a requested charge

. . . unless that [requested] instruction is legally correct, 7
represents a theory of defense with basis in the record that would lead to 8
acquittal, and the theory is not effectively presented elsewhere in the charge.” 9

United States v. Holland , 381 F.3d 80, 84 (2d Cir. 2004) (alterations in original) 10
(internal quotation marks omitted). 11

I. Willfulness 12
“The general rule that ignorance of the law or a mistake of law is no 13
defense to criminal prosecution is deeply rooted in the American legal system.” 14

Cheek , 498 U.S. at 199

. That said, any number of crimes

— including the FECA 15

violations at issue here

— require that a defendant “knowingly and willfully” 16

violated the law. In Bryan v. United States , the Supreme Court held that “ when 17
used in the criminal context, a willful act is one undertaken with a bad purpose. 1813 In other words, in order to establish a willful violation of a statute, the 1
Government must prove that the defendant acted with knowledge that his 2

conduct was unlawful.” 524 U.S. 184, 191

- 92 (1998) ( internal footnote and 3

quo tation marks omitted). 4

The defendant i n Bryan challenged his conviction for selling firearms 5

without a federal license. Id. at 189. The offense at issue required the government 6
prove Bryan acted willfully. Id. at 188

- 89. Bryan argued that as he was unaware 7
of the specific federal licensing requirements at issue, his actions did not satisfy 8

the willfulness element. Id . at 189

- 90. The Su preme Court rejected that argument, 9
holding that a statute with a “willfulness” requirement does not require the 10
government to prove a defendant acted with a specific intent to commit a 11
particular crime, because “knowledge that the conduct is unlawful is a ll that is 12
required.” Id . at 196. While Bryan involved a federal firearms conviction, “ this 13
court has recognized that its definition of willfulness is generally applicable. ” 14

United States v. Kosinski , 976 F.3d 135, 154 (2d Cir. 2020). 15

The re are two notable exceptions to this general rule. The Supreme Court 16

held that “ i n certain cases involving willful violations of the tax laws

. . . the jury 17
must find that the defendant was aware of the specific pro vision of the tax code 1814 that he was charged with violating. ” B ryan , 524 U.S. at 19 4 (citing Cheek , 498 U.S. 1

at 201 ) . And in Ratzlaf v. United States , a currency structuring case, the Court 2

“ concluded that the jury had to find that the defendant knew that his structuring 3
of cash transactions to avoid a reporting requirement was unlawful .” Id. ( citing 4

510 U.S. 135, 138 (1994) ) . The Court distinguished Cheeks and Ratzlaf from the 5

firearms violations in Bryan , noting that both cases involved “ highly technical 6
statutes that presented the danger of ensnaring individuals engaged in 7
apparently innocent conduct. ” Id. But “[t] he danger of convicting individuals 8
engaged in apparently innocent activity that motivated our decisions in the tax 9

cases and Ratzlaf [ was ] not present [in Bryan ] because the jury found that this 10
petitioner knew that his conduct was unlawful .” Id. at 195. Thus, a statute’s 11
willfulness requirement does not require the government to prove specific intent 12
unless the statute is high ly specialized and complex and implicates seemingly 13

innocent conduct. 14
Bryan makes clear that Cheek and Ratzlaf are the exception, not the rule. 15
Indeed, every Circuit to have considered the issue of whether FECA is so “highly 16
technical” as to require a heightened pleading standard has h eld it is not and 17

does not. See United States v. Smukler , 991 F.3d 472, 485

- 86 ( 3d Cir. 2021) (Section 1815 30122); United States v. Singh , 979 F.3d 697, 712

- 1 4 (9th Cir. 2020) (Section 30121); 1

United States v. Benton , 890 F.3d 697, 715 (8 th Cir. 2018) (applying Bryan standard 2

to false campaign expenditure charge); see also United States v. Lundergan , No. 3

5:18

- cr
- 00106, 2020 WL 3895771, at *7 (E.D. Ky. July 10, 2020) (applying Bryan 4
standard in unlawful corporate contribution case); United States v. Danielczyk , 917 5
F. Supp. 2d 573, 579

– 80 (E.D. Va. 2013) ( applying Bryan standard applied to 6
predecessor of Section 30122). 7
We agree. FECA may not be as straightforward as other statutes, but 8
is not as highly technical and complicated as the tax code at issue in Cheek , nor 9
does it po se the same threat of accidental violation as the anti

- structuring laws at 10

issue in Ratzlaf . As the Third Circuit aptly noted , “ FECA packs in rules for 11
contributions (and a host of other conduct) that candidates, campaigns, and 12

contributors must follow whe n engaging in election politicking. But those rules 13
are reasonably straightforward and written in common terms. ” Smukler , 991 F.3d 14

at 486 . When “compared with anti

- structuring or tax laws, as in Ratzlaf or Cheek , 15
individual campaign contribution laws are more intuitive and less complex.” 16
United States v. Danielczyk , 788 F. Supp. 2d 472, 490 (E.D. Va. 2011) , reversed in part 17
on other grounds , 683 F.3d 611 (4th Cir. 2012)

. And as the Ninth Circuit observed , 1816 FECA is “not a technical statute, nor does it present the same concern of 1
inadvertently ensnaring uninformed individuals” that the criminal tax laws and 2
structuring laws do. Singh , 979 F.3d at 712 . FECA “simply prohibits foreign 3
nationals from donating or contributing to candidates or political parties.” Id . at 4

713 . We find no error in the district court declining to charge the jury with a 5
heightened willfulness standard. 6

II. Conspiratorial intent 7
Kukushkin next argues tha t the district court erred when it declined his 8
request to instruct the jury that the “government had to prove that Kukushkin 9
knowingly and willfully became a member of the alleged conspiracy charged in 10
Count One with the intent of achieving a ‘ violation of the federal election laws

. ’ ” 11
Appellant’s Br. at 52. However, it is settled that a court need not restate the 12
conspiracy’s unlawful objective while charging the jury. See, e.g. , United States v. 13

Salameh , 152 F.3d 88, 145

- 46 (2d Cir. 1998) (rejecting the ar gument that the court 14
should have instructed that government had to prove “specific knowledge and 15
intent to,” as alleged there, “bomb the World Trade Center”). The district court 16
here appropriately charged the jury that it had to find Kukushkin “ knowingly, 17
willfully and voluntarily " joined the conspiracy “ with the intent of achieving its 1817 unlawful objective.” App’x 121

– 22. It was under no obligation to restate th at 1
objective when giving the willfulness charge. 2

III. Good faith charge 3
Finally, Kuk us h kin argues the district court erred in refusing to charge the 4
jury on the availability of a good faith defense, as “[a] defendant is entitled to a 5
jury charge which reflects his defense.” United States v. Doyle , 130 F.3d 523, 540 6
(2d Cir. 1997). Kukus h kin argues that because his good faith defense was not 7
adequately reflected in the district court’s charge, reversal is required. Again, we 8
disagree. 9
The district court charged the jury that the government needed to prove 10
Kukushkin acted willfully, k nowingly, and voluntarily. As the district court 11
aptly noted, “ to have found that Defendants acted willfully, the jury had to 12
conclude beyond a reasonable doubt that they intentionally did something that 13
the law forbids, the opposite of good faith. ” Parnas , 2022 WL 669869, at *6. 14
Where, as here, the district court correctly instructed the jury as to knowledge 15

and willfulness and the defendant’s theory was thus “effectively presented 16
elsewhere in the charge,” its refusal to provide a separate “good faith defense” 17

instruction is not reversible error. Doyle , 130 F.3d at 540 ( internal quotation marks 1818 omitted); see also United States v . McGinn, 787 F.3d 116, 126 (2d Cir. 2015) (holding 1
that even in a tax case, no good faith instruction was required because the 2
“standard jury instruction on the willfulness element of tax evasion generally 3
encompasses a good faith defense”) . Furthermore, the district court did deliver 4
Kukushkin’s requested instruction on his defense theory: that “he did not 5
knowingly or willfully enter into any agreement .

. . since he had no knowledge 6
of the unlawful nature of any such agreement.” Trial Tr. at 1516. Thus , the 7
district court’s “instructions conveyed the essence of a ‘good faith defense’ 8
instruction,” and there is no basis for reversal. United States v. McElroy , 910 F.2d 9
1016, 1026 (2d Cir. 1990) (rejecting analogous challenge)

. 10

CONCLUSION 11

For the reasons set forth above and in the accompanying summary order, 12
the district court’s judgment is AFFIRMED. 13

14

15

16

17