United States v. F. Whittemore
776 F.3d 1074
9th Cir.2015Background
- In Feb 2007 Whittemore agreed to raise $150,000 for Senator Harry Reid by the March 31 FEC filing deadline; on March 27–28 he transferred $145,000 to 17 relatives and employees in $5,000/$10,000 increments and urged them to contribute.
- Each recipient then made a $4,600 (statutory maximum) contribution to Reid’s campaign, mostly within a day; many said they would not have given but for Whittemore’s transfers and that he described the funds as gifts/bonuses intended to cover contributions.
- Campaign paperwork and spreadsheets initially identified many transferees as Wingfield employees; later Whittemore sent an alternate donor list obscuring those employer relationships.
- A jury convicted Whittemore of excessive contributions (exceeding individual limits), making contributions in the name of another (straw/conduit donations), and an 18 U.S.C. § 1001 false-statement count; he was sentenced to 24 months (downward variance).
- On appeal Whittemore challenged (1) refusal to give a jury instruction that unconditional gifts under Nevada law precluded § 441f liability; (2) constitutionality of contribution limits and § 441f; (3) two evidentiary rulings; and (4) sufficiency of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jury should be instructed that unconditional gifts that become recipients’ property under state law cannot be § 441f conduit contributions | Whittemore: Nevada law-made gifts became recipients’ property so transfers cannot be conduit contributions as matter of law | Government: federal statute looks to source and purpose of funds, not state property labels; O’Donnell controls | Rejected: instruction not required; federal law looks to substance/source; jury instructions adequately covered defense theory |
| Whether failure to give Nevada-property instruction deprived jury of considering Whittemore’s intent | Whittemore: lack of instruction prevented jury from finding lack of requisite intent | Government: given instructions defined conduit contributions and willfulness; jury could acquit if no intent | Rejected: instructions on knowingly/willfully and conduit contributions permitted consideration of lack of intent |
| Constitutional challenge to individual contribution limits and § 441f under First Amendment | Whittemore: contribution limits and conduit prohibition violate free speech/association | Government: Buckley permits contribution limits to prevent quid pro quo and appearance of corruption; Citizens United and McCutcheon don’t disturb that rule | Rejected: Buckley controls; contribution limits and conduit rules are constitutional as applied |
| Evidentiary rulings (exclusion of linguist expert; admission of some witness testimony as speculative) | Whittemore: excluded expert on statutory interpretation; admitted speculative lay testimony violating Rule 602 | Government: exclusion was tentative; defendant didn’t renew; admitted testimony was permissible or harmless | Rejected: exclusion not reviewable as final error absent renewal; testimony admitted within Rule 602/701 or harmless |
| Sufficiency of evidence for conduit-contribution convictions | Whittemore: evidence inadequate to prove he caused/was true source of contributions | Government: presented transfers, donor testimony, contemporaneous checks, call follow-ups, donor lists obscuring ties | Rejected: viewed in Government’s favor evidence was sufficient to support convictions |
Key Cases Cited
- United States v. O’Donnell, 608 F.3d 546 (9th Cir. 2010) (straw-donor interpretation: look to original source/purpose of funds, not intermediary label)
- Buckley v. Valeo, 424 U.S. 1 (U.S. 1976) (contribution limits are permissible to prevent quid pro quo and appearance of corruption)
- Citizens United v. FEC, 558 U.S. 310 (U.S. 2010) (distinguished corporate-expenditure rules from contribution limits)
- McCutcheon v. FEC, 134 S. Ct. 1434 (U.S. 2014) (struck aggregate limits but did not unsettle Buckley’s acceptance of contribution limits)
- United States v. Thomas, 612 F.3d 1107 (9th Cir. 2010) (defendant entitled to instruction on defense theory only if supported by law/evidence; given instructions may suffice)