A brief overview of Connecticut's public campaign financing program provides helpful context for considering the issues presented in this appeal. The website for the State Elections Enforcement Commission (Commission) describes Connecticut's public campaign financing program, the Citizens' Election Program (Program), as "a voluntary program which provides full public financing to qualified candidates for [s]tatewide offices and the General Assembly. To participate, candidates must agree to abide by certain guidelines, including contribution and expenditure limits and disclosure requirements. This voluntary public campaign financing program was designed to encourage citizen participation and limit the role of private money in the [s]tate of Connecticut's political process." State Elections Enforcement Commission, Citizens' Election Program, available at http://www.ct.gov/seec/cwp/view.asp?a=3548&Q=489606 (last visited October 11, 2018).
The Program applies tо all state elections, including primaries. General Statutes § 9-702 (b). In 2012, the
The jury could have found the following relevant facts. On January 14, 2012, the defendant registered as a candidate for state senator in the twenty-third district, affiliated with the Democratic party. Because the defendant was "a major party candidate for nomination to the office of state senator," his candidate committee was eligible under the Program for a grant from the citizens' election fund for his primary campaign for the nomination. General Statutes § 9-702 (a) (1). As required by statute, the defendant filed an affidavit of intent to abide by the requirements of the Program. General Statutes § 9-703 (a). In the affidavit of intent, the defendant certified, inter alia, to the following: "I understand that I am required to comply with the requirements of the Program, including all applicable
On July 9, 2012, Loretta Williams, the treasurer for the defendant's candidate committee, filed the defendant's application for a grant from the citizens' election fund under the Program. In the application, the defendant and Williams both certified that the defendant had received the requisite amount of qualifying contributions. On the same day, Williams filed an itemized campaign finance disclosure statement, which repоrted that the campaign had raised an aggregate amount of $15,375.
After Williams filed the defendant's application for the grant along with the supporting documentation, the Commission conducted a routine review of the application to confirm that the defendant had complied with the Program requirements. That review revealed that the defendant had raised only $14,410 in qualifying contributions, falling $590 short of the amount necessary to qualify for the grant of $80,550 in public funds. A further review revealed that an additional $100 qualifying contribution had not been counted, and it was determined that the shortfall was actually $490. On July 17, 2012, the defendant was holding a rally at his campaign
Sometime later that day, Williams discovered $500 in cash on her desk, along with contribution cards certifying that five individuals-Alfredo Serrano, Leeta Reed, Mark Bogues, Vincent Derr and Zena Galberth-had each donated $100 to the campaign. Contrary to the representations on
The following day, the campaign filed documents showing that, on July 17, 2012, it had received five separate $100 cash contributions made in the names of Serrano, Reed, Bogues, Derr and Galberth. Upon receiving the additional filing, the campaign disclosure and audit unit of the Commission submitted a recommendation that the defendant's grant application be approved. As a result of that approval, the defendant
On August 23, 2012, Serrano contacted the Commission to complain that he had not been compensated for work that he had performed for the defendant's campaign. At that time, Serrano also disclosed that he had signed a document stating that he had made a contribution to the campaign when he had not in fact contributed any money. Charles Urso, the lead investigator for the Commission, followed up on the information provided by Serrano and ultimately took statements from all five individuals who had signed contribution cards at the rally on July 17, 2012.
The defendant was subsequently charged with two counts of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2) and (4), and § 53a-8, one count of tampering with a witness in violation of General Statutes § 53a-151, and five counts of illegal practices in campaign financing in violation of §§ 9-622 (7) and 53a-8.
The defendant claims that the trial court improperly failed to charge that, in order
I
As a threshold matter, we address the state's contention that the defendant waived his unpreserved instructional challenge. The defendant's failure to preserve his instructional challenge is clear from the record. He failed to file a request to charge, and he did
The state claims that the defendant's instructional challenge is unreviewable because he implicitly waived the claim under the rule articulated in
The following additional procedural facts are relevant to our resolution of this issue. The court provided the parties with copies of the draft preliminary instructions on January 12, 2015. At that time, the court requested that counsel provide input on areas that the court had marked on the draft and, in particular, solicited feedback from counsel as to whether the applicable mens rea for the crime of illegal practices in campaign financing was general or specific intent. Shortly thereafter, the court reminded counsel that it welcomed any comments on the draft charge. The next day, the court provided counsel with an updated version of the draft and reiterated that they should contact the court with any suggestions for changes to the proposed instructions.
During the charge conference on January 14, 2015, the state took issue with the proposed instruction on the crime of illegal practices in campaign financing on the basis that some of the language in the instruction suggested that specific intent was the applicable mеns
"Ordinarily, knowledge can be established only through an inference from other proven facts and circumstances. The inferences may be drawn if the circumstances are such that a reasonable person of honest intention ... in the situation of the defendant, would have concluded that ... Serrano had not made a campaign contribution. The determinative question is ... whether the circumstances in the particular case form a basis for a sound inference as to the knowledge of the defendant in the transaction under inquiry....
"Conclusion. In summary, the state must prove beyond a reasonable doubt that the defendant ... as either a principal or an accessory, one, either directly, indirectly or through another person, made a payment to the treasurer; two, the payment to the treasurer was in the name, [Serrano], a person other tha[n] the person who provided the payment; and, three, the defendant, as a principal or accessory, knew that the information was false."
After the court finished the charge and excused the jury, it invited counsel to raise any objections to the charge as given. During the ensuing colloquy, defense
The state claims that, although defense counsel initially requested a specific intent instruction, in light of his subsequent statements and conduct, he implicitly waived any challenge to the court's general intent instruction by "affirmatively accepting" it. Specifically, the state claims that defense counsel abandoned his claim that specific intent was required and "accepted" the general intent instruction by responding, "[a]ll right" when the court rejected his request. As further evidence that defense counsel "affirmatively accepted" the general intent charge, the state points to defense counsel's failure either to file a subsequent request to charge including specific intent language or to reiterate his request for a specific intent charge before the final instruction the following morning. Lastly, the state points out that, when the court gave counsel the opportunity to raise any concerns with the charge after the court had given the final instruction, defense counsel raised an issue but did not object to the general intent instruction, and took no exception to the charge on that basis.
We emphasize that our determination that defense counsel did not waive his
This case stands in sharp contrast to State v. Coleman ,
We also are not persuaded by the state's argument that defense counsel affirmatively accepted the general intent instruction by failing to reiterate his opposition to the trial court's ruling in the state's favor. For instance, the state relies on defense counsel's failure either to submit a subsequent request to charge including specific intent language or to take an exception to the charge as given. Under the facts of the present case, those failures on the part of defense counsel, although relevant to the preservation of the defendant's claim, do not constitute waiver. The purpose of the Kitchens rule is simply to ensure that defense counsel brings "the specific instructional error to the trial court's attention
II
We turn to the primary question presented in this appeal, namely, what mens rea the state must prove in order for a jury to find a defendant guilty of the crime of illegal practices in campaign financing. We conclude that, in order to obtain a conviction for a violation of § 9-622 (7), the state must prove that a defendant acted with knowledge
"The standard of review for claims of instructional impropriety is well established. [I]ndividual jury instructions should not be judged in artificial isolation ... but must be viewed in the context of the overall charge.... The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper
Section 9-622, which sets forth illegal practices in campaign financing, including the particular practice at issue in the present case, provides in relevant part: "The following persons shall be guilty of illegal practices and shall be punished in accordance with the provisions of section 9-623... (7) Any person who, directly or indirectly, individually or through another person, makes a payment or promise of payment to a treasurer in a name other than the person's own, and any treasurer who knowingly receives a payment or promise of payment, or enters or causes the same to be entered in the person's accounts in any other name than that of the person by whom such payment or promise of payment is made ...." Unless a defendant is a campaign treasurer, § 9-622 (7) does not identify the requisite mental state for a violation of the statute. Section 9-623-the penalty provision for § 9-622-defines the mental state for violations of the provisions of § 9-622, including subsection (7). Section 9-623 provides in relevant part: "(a) Any person who knowingly and wilfully violates any provision of this chapter shall be guilty of a class D felony...." (Emphasis added.)
The central question presented in this appeal, therefore, is the meaning of the phrase "knowingly and wilfully"
Although this court has previously considered the meaning of the phrase "knowingly and wilfully" as used in the campaign finance statutory scheme, our interpretation of that phrase predated significant developments in the relevant case law of the United States Supreme Court. In State v. Proto ,
Because our campaign finance laws are similar to federal campaign finance laws, in interpreting §§ 9-622 (7) and 9-623, we are guided by recent United States Supreme Court decisions construing the term "wilfully." See Nussbaum v. Kimberly Timbers, Ltd. ,
Depending on the complexity of the statutory scheme and the risk of criminalizing otherwise innocent conduct,
The court concluded that the first, baseline meaning applied under the facts presented in George . Relying on Browder v. United States ,
The second meaning of "wilfully" identified by George is the most stringеnt standard of specific intent, which would require the government to prove that a defendant acted with knowledge not only that his conduct was
The third meaning of "wilfully"-an "intermediate" level of intent-is exemplified by the decision of the Supreme Court in Bryan v. United States ,
In concluding that the term "wilfully" denoted more than mere general intent, the court in Bryan relied primarily on the fact that in the statute at issue in the case,
The remaining question in the present appeal is which of the three levels of intent is the correct standard for the term "wilfully" as used in §§ 9-622 (7) and 9-623. Although there are no Second Circuit cases analyzing the proper mens rea in the context of campaign financing statutes, federal district courts in other circuits have applied the George analytical framework in addressing this issue. In doing so, those courts have concluded that the intermediate meaning of "wilfulness" is the appropriate mens rea for violations of the federal campaign finance statutes that use substantially the same language as § 9-623, i.e., "knowingly and wilfully." See United States v. Whittemore ,
The reasoning of the District Court in Danielczyk is particularly instructive. That case involved charges that the defendant had made campaign contributions in the name of another in violation of 2 U.S.C. § 441f and
The court also rejected the government's argument that only general intent was required. Notwithstanding the court's earlier observation that there was only a low risk that the average citizen would be "trapped" by the campaign finance laws, it acknowledged that it was at least possible that innocent conduct could be criminalized if the court interpreted "wilful" to denote the baseline level of general intent. United States v. Danielczyk , supra,
We agree with the federal courts that interpreting the term "wilful" in the campaign finance laws to denote the intermediate level of intent strikes the proper balance.
Consistent with our conclusion that the intermediate level of intent applies, the court was required to instruct the jury as follows: "The ... final element that the [state] must prove ... is that the defendant acted knowingly and [wilfully]. A person acts knowingly if he acts intentionally and voluntarily and not because of ignorance, mistake, accident, or carelessness. [Wilfully] means to act with knowledge that one's conduct is unlawful and with the intent to do something that the law forbids. That is to say, with a bad purpose, either to disobey or disregard the law. The defendant's conduct was not [wilful] if it was due to negligence, inadvertence, or mistake. However, it is not necessary for
In the present case, the instruction that the trial court gave, which is set forth in part I of this opinion, only requires knowledge of the falsity of the payment and not knowledge that the defendant's own conduct was unlawful-that is to say, with a bad purpose to disobey or disregard the law. The jury, therefore, was not properly instructed regarding the applicable mens rea for the crime of illegal practices in campaign financing, and we conclude that it is reasonably possible that the jury was misled. Moreover, because the incorrect instruction pertains to an element of the offense, and because there is no evidence in the record that the omitted element was uncontested, harmless error analysis does not apply.
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other justices concurred.
Notes
The defendant also claims that the trial court improperly violated his right to present a defense by excluding a bank statement of one of his witnesses offered to show that the witness could not have supplied $500 in cash for the illegal campaign contributions. The state responds that the trial court did not abuse its discretion in excluding the bank statement on the basis that the defendant had failed to establish its relevance at the time of the proffer. Because we reverse the trial court's judgment on the basis of the defendant's instructional challenge, we need not resolve the question of whether the trial court properly excluded the bank statement.
The actual amount disbursed to the defendant was $80,805. That amount included an adjustment of $255 to correct for an overpayment made by the defendant's committee to the Commission. Specifically, because the defendant's committee reported that it raised $15,140, the committee was required to remit the excess $140 to the Commission prior to receiving the grant money. The committee mistakenly overpaid by $255, remitting payment to the Commission of $395.
We observe that the long form information does not cite General Statutes § 9-623 in connection with the counts charging the defendant with illegal practices in campaign financing. Although the defendant speculates that this omission in the long form information could have caused the trial court's failure to instruct the jury that the defendant must have acted "wilfully" in order to be found guilty of illegal practices in campaign financing, the defendant does not ground his appeal on a claim that the information was deficient.
The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
We observe that the state relies on the defendant's failure to invoke Golding by name to urge that we decline to review the defendant's instructional challenge. This court, however, has expressly rejected the notion that a defendant's entitlement to Golding review should be predicated on an affirmative request for such review. State v. Elson ,
As of the date of the charge conference, the court's proposed draft instruction as to the mens rea for the crime of illegal campaign financing practices (given with the first count, then incorporated by reference in the remaining counts) provided in relevant part: "The third element is the defendant, as a principal or accessory, knew that the information was false. A person acts 'knowingly' with respect to conduct or circumstances when he is aware that his conduct is of such nature or that such circumstances exist. An act is done knowingly if done voluntarily and purposely, and not because of mistake, inadvertence or accident.
"Ordinarily, knowledge can be established only through an inference from other proven facts and circumstances. The inference may be drawn if the circumstances are such that а reasonable person of honest intention, in the situation of the defendant, would have concluded that ... Serrano had not made a campaign contribution. The determinative question is whether the circumstances in the particular case form a basis for a sound inference as to the knowledge of the defendant in the transaction under inquiry....
"The fourth element is that the defendant intended to deprive the public community of the value of the claim. To intend to deprive another of property means to intend to withhold or keep or cause it to be withheld from another permanently, or for so long a period or under such circumstances that the major portion of its value is lost to that person. In other words, the state must prove beyond a reasonable doubt that the defendant took the property for the purpose of keeping or using it permanently or virtually permanently, or of disposing of the property in such a way that therе was a permanent or virtually permanent loss of the property to the owner."
Because we conclude that defense counsel did not affirmatively accept the instruction, we need not review the other Kitchens factors.
We are not persuaded by the defendant's reliance on United States v. Curran ,
We recognize that it is peculiar that only the campaign treasurer, and not the candidate, is held to the higher standard. As §§ 9-622 (7) and 9-623 are presently worded, the most reasonable inference is that the legislature intended that a candidate be held to the same standard as any member of the public. Certainly, public policy principles would counsel otherwise. Regardless of our view that the better approach would be to apply the criminal penalty to a candidate who "knowingly" rеceives a payment in a name other than the name of the person by whom such payment is made, "restraint counsels us to commend the issue to the attention of the legislature for further review, as is appropriate. We consistently have held that the task of changing the law lies with the legislature, and not with the judiciary." (Internal quotation marks omitted.) Connecticut Podiatric Medical Assn. v. Health Net of Connecticut, Inc. ,
We emphasize that the court was not required to instruct the jury that, in order to obtain a conviction, the state was required to prove that the defendant acted with the specific intent to violate § 9-622 (7).
The state contends that, because "the defendant's knowledge of the law was never an issue at trial," the defendant's mens rea was uncontested, and, therefore, the instructional error was harmless. As support for its claim that the defendant's mens rea was uncontested, the state points out that the defendant's theory of defense was that he played no part in soliciting the contribution cards. In other words, rather than arguing that he did not know it was illegal to ask persons to falsely claim that they made contributions to his campaign, the defendant claimed that he had nothing at all to do with the contributions.
For two reasons, we are not persuaded by the state's argument. First, it ignores the principle that the state bears the burden to prove beyond a reasonable doubt that the defendant had the requisite mens rea. Given that allocation of the burden, the mens rea is always contested, unless a defendant concedes that he had the requisite mens rea. In fact, because the state always must prove all of the elements of an offense, the defendant has no obligation to affirmatively contest an element-at the end of the state's case, he may elect to hold the state to its burden. That strategic decision does not mean that the defendant has conceded any element of the offense. Second, implicit in a general defense of nonparticipation in criminal activity is the claim of lack of intent to engage in that conduct.