United States v. Michael R. Goland

FARRIS, Before PREGERSON THOMPSON, Judges. Circuit THOMPSON, Judge: R. Circuit source. He sent DAVID Barnes cashiers checks payable “Greenstripe Media,” the com-

OVERVIEW pany Barnes had retained to coordinate broadcasts of the commercial. Michael Goland was with com- mitting campaign in con- political violations script Goland wrote the that Vallen read Alan nection with race between Cran- “tag for the commercial. The line” on the ston, Zschau, Ed Ed for the and Vallen commеrcial read by “Paid for the Commit- in the 1986 United States Senate California Senate,” tee Elect Ed Vallen to the U.S. first trial ended in a mistrial. election. His Goland,” not “Paid for Michael as re- then moved to dismiss the indict- quired by law for an independent expendi- jeopardy grounds. on The ment double ture. 110.11(a)(l)(iii) C.F.R. § court denied the motion and district (1990). Goland claimed he did not see the Abney interlocutory appeal took an under tag line until after the commercial first States, v. United air, appeared on the but he did not do ap- 52 L.Ed.2d 651 anything to have the commercial taken off peal, jeopardy we held that double did not the air once he saw it. reprosecution. United States bar Goland’s Goland, (9th Cir.1990). Following discovery improper his again was tried and this time line, tag Goland collected checks from os- making convicted him of excessive contri- (to tensible “contributors” whom Goland campaign in political butions to a violation reimbursements) gave cash ap- to make it 441a(a)(l)(A) 437g(d). 2of U.S.C. and §§ pear campaign that Ed Vallen’s committee appeals juris- He this conviction. We have paid through proper for the commercial diction under 28 U.S.C. 1291 and af-we § partici- contributions. Goland admitted he firm. pated in keep this effort to the commercial air. FACTS superseding second indictment (Democrat), Alan Cranston Ed Zschau charged Goland with six crimes. Count (Republican), (American and Ed Vallen In- charged one conspiracy Goland with to de- dependent Party) ran the 1986 California by impairing fraud the States and election for the United States Senate. impeding the lawful function of the Federal contest between Cranston and Zschau was (“FEC”) Election Commission in violation close, pollsters predicted and a narrow mar- conspiracy of 18 371 and U.S.C. know- § gin would decide the race. Goland favored ingly filing campaign cause the of false strong рro- Cranston because of Cranston’s finance statements with the FEC viola- odds, help Israel record. To Cranston's tion of 18 U.S.C. 1001. Counts two § Goland decided he Republican could divert through charged causing four by running indepen- votes from Zschau campaign treasuries two committees expenditure campaign favoring dent Vallen reports to file false with the FEC concern- opposing and Zschau. Goland had run a campaign financing sup- the sources of cаmpaign opposing similar Senator Charles plied to them Goland. Count five Percy of Illinois 1984. Goland admitted charged wilfully Goland with Morrow, that either he or Colleen he whom $120,- excessive help had hired to with the anti-Zschau ef- committee, in 000 to the Vallen violation of fort, conceived idea of a television com- 441a(a)(l)(A) 437g(d). and U.S.C. §§ featuring right wing mercial candidate to making an Count six Goland with praise Cranston and criticize Zschau. approxi- excessive contribution of Angeles Goland used Los media consul- $30,000 mately to National Pro-Life PAC. tant Mike Barnes to contact Vallen and guilty arrange found Goland of count kept the commercial. one, identity secret, five, two, guilty he counts three because believed Vallen reject money six, pro-Israel hung would from a on count four. Campaign the Federal Election Under

DISCUSSION Act, independent expenditures must be Under Requirements for Conviction A. cooperation made “without or consultation U.S.C. § candidate, any any or authorized com- 441a(a)(l) provides perti- 2 U.S.C. § candidate, agent or of such mittee part: nent with, [may not made concert or at be] make contributions— person ‍​‌​​​‌‌​​‌​​‌‌​​‌‌​‌​‌​​​​​​‌‌‌​​‌‌​​​‌​‌​​​‌‌​​‍No shall candidate, suggestion any request or (A) any candidate and his autho- agent authorized committee or respect political rized committees with 431(17); candidate.” U.S.C. such for Federal office any election (1990). In Buckley, C.F.R. 100.16 Su- which, аggregate, exceed in the preme Court drew distinction between

monetary independent expendi- limits on he did not contends violate campaign tures and contributions. “[c]learly 441a(a)(l)(A) because he section prohibited dollar limitations on inde- Court money to the .'.. did not contribute Valeo, Buckley v. expenditures, pendent himself,” gave instead ‘candidate’ but 39-49, 644-49, 424 at 96 S.Ct. at but U.S. money Greenstripe reject Media. We to upheld campaign the limitations on contri- argument. A violation does not re Id. at 23-38, at 636-44. butions. S.Ct. money to a candi quire a direct transfer independent expenditures Limits on tend to 441a(a)(8). Rather, date. 2 U.S.C. groups except exclude all citizens and can- 441a(a)(l)(A) prohibits section “contribu didates, political parties, and the institu- tions,” interpreted very term courts have a press any significant tional “from use of broadly. Supreme noted in Court most modes of communica- effective Valeo, 1, 24, Buckley v. 23-24 n. tion,” campaign while contribution limits 612, 24, n. 46 L.Ed.2d 659 96 S.Ct. 636-37 place only “marginal upon a restriction” (1976): ability engage in the contributor’s free provided political or Funds to a candidate 19-21, Id. at at communication. campaign party or committee either di- 634-35. indirectly through rectly or an intermedi- asserts that his contribu ary a constitute contribution. addi- “independent expenditures” tions were be tion, given person dollars another or directly cause he did not contribute to Vаl organization po- that are earmarked for campaign secretly and he len’s because was purposes under litical are contributions supporting Cranston’s reelection. Goland’s the act. arguments lack merit. FEC, See also Medical Ass’n v. California charged contributing with 198-99 n. campaign. through the Vallen He worked (1981) (plural 2722-23 n. 69 L.Ed.2d 567 Barnes, agent, arrange to fund and (administrative ity opinion) support consti Vallen commercials. The ex- 441a(a)); tutes a cоntribution under section penditures exception to contribution limits Haley Federal Election Comm’n v. Ted (1) does not to Goland because: Comm.., 1111, 1116 Congressional agents acting in of Vallen and Goland were (9th Cir.1988) (post-election guaran loan concert; (2) cooperated Vallen contributions); qualify tees to bank as by accepting money per- 431(8)(A)(i) (contribution includes U.S.C. § forming the commercial. intended loan, advance, “any gift, subscription, or campaign, it to contribute to Vallen’s deposit money anything of value to conviction under section immaterial by any person purpose for the made 441a(a)(l)(A) support that he did so in influencing any election for Federal of Cranston. fice”); 100.7(a)(1)(1990) (same); 11 C.F.R. § 100.7(a)(l)(iii)(A) (1990) (defin appeal, For the first time on Goland ar- C.F.R. § value”). gues he cannot ing “anything be convicted of violat- contributions It is immaterial that Goland made his con section the “Com- because indirectly. to Vallen to Elect Ed tribution mittee Vallen” was not Cong. (1976), purported time of Goland’s 94th 2d Sess. 53-54 reprinted existence at the generally do not consider We in 1976 contribution. U.S.C.C.A.N. 968-69. Go- appeal. raised for the first time on proffered interpretation an issue land’s of the stat- Carlson, 900 F.2d States v. loophole ute whereby would create contri- Cir.1990). issue, consider this $1,000 butions excess of the limit could however, ques- presents pure because it be made to a candidate in the fifteеn-day opposing party law and the will tion of period required before he or she is to estab- result prejudice suffer no as a of Goland’s lish an pursuant authorized committee it in the trial court. Id. failure raise 432(e)(1). section We do not read the stat- providing utes loophole. such a superseding indictment Go- land Finally, explained, as we have a con Elect to “The Committee to Ed Vallen may tributor violate section 441a mak Similarly, instruc- U.S. Senate.” ing an exсessive contribution to a candi required jury to find that Goland tions government date. The presented sufficient something gave of value excess of evidence for the to conclude that Go- to the commit- “Vallen land instruction, made such a proposed jury contribution to Vallen. tee.” Goland’s indictment, however, charged adopted by not the district Goland which was court, to the with also referred contributions an excessive contribution to “Vallen committee.” Vallen’s committee. This variance is imma terial. Federal election law treats the can argue does not that his conviction Goland single didate and his committees as a unit should be set aside because the indictment purpose accepting for the of contributions. statutorily prohibited him awith 432(e)(2), any Under U.S.C. candidate § contribution to Vallen’s committee and not who receives a contribution for use in con Rather, he ar- to the candidаte Vallen. nection with his is considered as gues that the Committee to Elect Ed Vallen having the received contribution as the 27,1986, did not exist October with- agent of the authorized committee or com existence, legal in out a committee the con- mittees of the candidate. See also U.S.C. statutorily prohibited “not a tribution was 441a(a)(7)(A). ‘any any contribution to candidate’ or to ” political ‘authorized committee.’ Brief undisputed It is that Vallen received and Appellant for contribution, accepted the he did not albeit reject argument. Nothing source, in know its and starred the com- 441a(a)(l)(A)requires on the face of section paid mercial written and for Goland. political the existence of an authorized com government’s proof the established prosecution; mittee to sustain a valid statutorily prohibited as excessive contribution to a candidate suffic charged by the indictment. es. Morеover, nothing in legislative his- Jury B. Erroneous Instructions tory of section 441a indicates that Con- argues Goland that the district gress intended the existence of an failing give “theory of court erred pre- authorized committee to abe “A Indeed, jury. defense” instruction to the trial requisite prosecution. Congress if apparently judge may used refuse an instruction its lan the words “candidate and political guage gives emphasis undue to defendant’s his authorized committees” sec- being tion to insure that version of the facts rather than ‘a contribu- appropriate principles tions to such committees count toward the statement of [the] $1,000 facts,’ if jury contribution limitations for each can- law for the to the didate, $20,000 jury and not toward the and it tend to influence the toward would political accepting contribution limits for com- the defendant’s version 441a(a)(l)(B) Davis, mittees set out sections 597 F.2d facts.” United States v. 441a(a)(l)(C). (9th Cir.1979) (citation omitted). H.R.Conf.Rep. No. Argument Improper Rebuttal ample D. given Davis,

As in theory of testify, and his opportunity prosecutor argues that the argued by his coun- forcefully defense was scope of rebuttal improperly exceeded 1240 n. 7. Davis, F.2d at sel. See court’s determination argument. A district the court that Further, instructions scope proper of rebuttal regarding the expressed Go- adequately jury gave to the of discretion. Unit abuse reviewed defense. theory (9th land’s Gray, 876 F.2d v. ed States denied, Cir.1989), cert. the district contends also 109 L.Ed.2d failing instruct erred in any court that of the to demonstrate has failed the criminal likely to violate specific intent more than not ma he asserts errors “may not be trial. terially the indictment the fairness charged in affected laws ‍​‌​​​‌‌​​‌​​‌‌​​‌‌​‌​‌​​​​​​‌‌‌​​‌‌​​​‌​‌​​​‌‌​​‍Polizzi, failure to Mr. Goland’s solely from United States inferred Cir.1986). provisions or civil 1557-58 to administrative adhere The district law.” federal election Party instructed Affiliation Jurors “[vi court instead E. Political or civil statutes regulations olations the district Finally, argues that crimes, such vio more are without failing prospective to ask court erred occurred, necessarily are not if lations candidate, if during dire jurors voir which you may con ... law of criminal violations election and they for in the 1986 any, voted you of civil statutes] sider [violations party, any, they if were political with which determining any other evidence would registered. re had the Mr. Goland or not whether dire, conducting the district In voir the to law specific intent violate quired to ask latitude. Failure court has wide The instruc in indictment.” charged this only for questions will be reversed specific essentially the same gave is the court tion v. States an abuse of discretion. United requested. The instruction Goland as the (9th Cir.1985). Steel, F.2d in instruct the required to court is not will if discretion be found Such abuse Davis, accused. of the the words chosen reasonably is not sufficient the voir dire 597 F.2d at 1239. partiality. Id. for bias or test the Here, poten district court asked the Rulings C.Evidentiary in they had the jurors voted tial whether court argues that the district election, politics, had active were probative by excluding relevant and erred campaign, or any federal participated He contends in six areas. defense evidence elec the FEC or federal with were familiar is relevant both the evidence excluded asked Further the court whether tion law. the paymеnt for of mind that supported his Cran- potential jurors state independent ex- ston, was an in the 1986 election Vallen commercial or Zschau Vallen voting, Vallen prove that the than such penditure, way and to in a other contributing or cam actively campaigning the date of the not exist on committee did con The extensive voir dire paign funds. contribution. adequately the by the court ducted tested prof- the carefully reviewed We have partiality. jurоrs for bias evidence, the district and conclude fered AFFIRMED. in exclud- court did not abuse its discretion Emmert, ing it. See States dissenting: PREGERSON, Judge, Circuit Cir.1987) (evidentiary F.2d of discretion majority for abuse rulings are reviewed respectfully I dissent. only if nonconsti- in reversal made a “contribution” and will result holds that Goland “indepen- not an likely campaign, than not affected and error more Ed Vallen’s tutional Cran- verdict). expenditure” dent Senator Alan (1) My disagreement agents with because: camрaign. ston’s Vallen and Goland concert; (2) majority’s holding acting rests on three were coop- Vallen First, disagree majori- I erated grounds. by accepting money with Goland performing ty’s application of the contribu- the commercial.” Ante at law, particularly light of the fact tion Second, specific crime. that it is a intent disagree. I hardly It can be said that lenity, majority ignores the doctrine of cooperated Goland and Vallen in this ef- especially important when First

which fort. Vallen made it clear that he would Third, rights are involved. Amendment accept support not from a Zionist source. district court excluded critical evidence fact, Vallen had sup- been told that the directly was relevant to Goland’s state of port patriotic came from a conservative mind. Republican. part, despised For his agree majority supported I that a “contri- Ed Vallen and Alan Cranston for pro-Israel does bution” under U.S.C. views. require payment a direct to the candi- commercial, The television which consti- date, disagree I that it is ante at but contribution, allegedly illegal tutes the under this section immaterial to conviction conceived and written Goland. The ad actually sup- that Goland’s efforts were Vallen, Zschau, featured Ed criticizing Ed Cranston, at port of ante 1452. To the stating only he and Alan Cranston contrary, highly fact is relevant integrity. approve hаd Goland refused to culpability Goland’s because he is Vallen, script changes satisfy and Vallen Thus, specific with a intent crime. his sub- acquiesced only in the venture because he

jective must taken into account motive felt that some air time was better than rightfully a conviction can be re- before Vallen, none. The commercial featured but turned. clearly urge it did not voters to elect him. times, Rather, At all Goland has maintained that the commerciаl focused on criticiz- circumstances, he intended to make an ex- Zschau. Under these it penditure campaign. to Cranston’s He is difficult to conclude that Vallen and Go- steps requirements working took to conform to the land were in concert. Each used independent expenditures by insuring pursue of the other to an individual and inde- pendent agenda. that he would have ‍​‌​​​‌‌​​‌​​‌‌​​‌‌​‌​‌​​​​​​‌‌‌​​‌‌​​​‌​‌​​​‌‌​​‍no contact with Cran- ston. Because the evidence is insufficient majority applies the definition of possessed req-

to establish that Goland the in a manner. The “contribution” too broad specific support uisite intent to a conviction law is not clear whether the statute encom- for excessive to contributions Val- using passes tactics of one candidate to 2 len’s in violation of U.S.C. further the election of another candidate. 441a(a)(l)(A) 437g(d), I would re- §§ government’s expert Testimony of the wit- verse Goland’s conviction. ness at Goland’s first trial bears out this government ambiguity. general concedes the truth of An associate counsel regula- that he financed Goland’s assertion the of the FEC testified that when the candidate, promote to speak cooperation television commercial Cran- tions of with a by siphoning away they generally ston’s reelection votes mean the candidate that the government supports, from Ed Zschau. The also ad- the individual not candidate during argument oral opposes.1 mitted that the com- that the individual independent expenditure permitted mercial was an testimony not to introduce this at respect to Senator Alan Cranston. his second trial. did court Nor the allow Nonetheless, majority the concludes that Goland to cross-examine the FEC official establish, “independent expenditures exception spon- the hypothetically, at least that sorship limits does not contribution of the Vallen сommercial could rea- government. for Goland informed us of this 1. Counsel testi- mony argument. by at oral It was not refuted

1456 “im- restrictions would such ex- tures because an sonably considered restraints pose direct and substantial penditure. 39, political speech.” Id. at quantity of scope concerning clarity The lack at 644. 96 S.Ct. activity prohibited indepen- he made an believed that not finding did that Goland a mandates support in of Cranston expenditure for a dent required specific intent possess the financing the commercial. wrote under conviction spoke. Those words that Vallen ... the words the law that when “It is settled laws. Moreover, re- promoted Cranston. debatable, defendant-actually or highly is changes suit Val- script to make to vio fused requisite intent imputedly-lacks the com- Dahlstrom, that facts demonstrate v. 713 len. These late it.” United States politi- a medium for Goland’s Cir.1983) (quoting mercial was (9th 1423, 1428 F.2d way in no intended Critzer, 1160, speеch and was cal v. 498 F.2d United States denied, should be Cir.1974)), support 466 Vallen. commercial cert. (4th 1162 pro- independent expenditure (1984). 2363, L.Ed.2d considered 980, 80 835 104 S.Ct. Id. by the First Amendment. See tected lenity offers additional The doctrine (dis- 44-47, at 646-48 424 U.S. at 96 S.Ct. reversing support Goland’s conviction. cussing contributions difference between concerning questions that It is well settled in terms of independent expenditures are resolved criminal statute ambit of a values). First Amendment States, v. United Dunn lenity. favor Goland’s 2190, 2197, raising about 112, Evidence doubts 442 U.S. laws was ex to violate the election practice reflects intent “This L.Ed.2d 743 jury’s consideration. Al from the of statu- cluded merely convenient maxim not rulings are within Rather, though evidentiary it is rooted tory construction. judge, of the trial evidence discretion process of due sound principles fundamental state of mind of a defendant’s probative forced no mandate that individual be which pre is contested is intent indictment, which peril at whether case speculate, United States to be relevant. Id. en- sumed prohibited.” his conduct “[T]o Cir.1981), Wasman, 641 F.2d v. special legislature speaks that a sure 559, 104 S.Ct. 'd, 468 U.S. marking the boundaries clarity when aff Platt, States v. (1984); United conduct, to L.Ed.2d 424 courts must decline criminal (2d Cir.1970). A few for actions are impose punishment in earlier, conducted unmistakably’ proscribed.” Id. years the FEC ‘plainly and against Senator quiry into Goland’s efforts 112-13, (quoting at 2197 at S.Ct. Republican pri Gradwell, Percy in the 1984 Illinois States tactics used 407, 410, (1917)). mary. Goland similar L.Ed. 857 Under against Zschau. as he used that Go- election here principles, I cannot conclude these it inquiry its because The FEC terminated cooperated land acted concert of unlawful coordina no evidence found agents of Vallen under the terms supports FEC's own conclusion tion. The provisions question. that he theory defense here Goland’s in this particularly must sensitive promote Cranston tactics believed punish- risk sаnctioning case because we expenditure. For the were activity First when ment for Amendment above, intent Goland’s stated reasons Buck- expression. regulate critical we probative key in this case. Evidence issue Valeo, 1, 40, 41, 96 ley v. U.S. S.Ct. 424 have been exclud intent should not that 645, (1976) (“speci- 612, 645, L.Ed.2d 46 659 ed. required statutory limitation is ficity of the other evidence here, imposes trial court where, legislation excluded directly to Goland’s state permeated by areа relevant penalties was criminal relevancy interests”). Buckley, The court mind. sustained First Amendment thereby excluded evidence Congress objections and Supreme Court held that Barnes, consultant, expendi- made regulate independent media could not

1457 (1979). “independent expenditure” offer to L.Ed.2d 755 similar had no such third-party Accordingly, The trial ‍​‌​​​‌‌​​‌​​‌‌​​‌‌​‌​‌​​​​​​‌‌‌​​‌‌​​​‌​‌​​​‌‌​​‍notice. I another candidate. would reverse. Goland’s coun- court also refused allow Morrow, Barnes and

sel to cross-examine Goland, contrary previ-

who testified In a trial inconsistent statements.

ous depended credibility much on the

where witnesses, the failure to allow this disadvantaged

cross-examination

unfairly. should have been al- Phillip HARMON, J. in determin- Petitioner-

lowed to consider this evidence Appellant, regarding intent the commer- Goland’s cial. 437g(d)(l)(A), the Under violation § RYAN, Warden, al., Charles et

the federal election laws must be Respondents-Appellees. Thus, “knowingly willfully.” made No. 91-15139. government prove must as an element of engaged in the offense that Goland Appeals, United States Court of “voluntarily prohibited conduct and inten Ninth Circuit. tionally, and not because of mistake or 23, July Submitted 1991*. accident or other innocent reason.” Dev- Blackmar, Jury itt and Federal Practice 26, July Memorandum Filed 1991. Instructions, (3d 1977). 14.04 ed. § Opinion 20, Sept. Order and Filed 1991. “Willful” the criminal context includes Opinion 26, Withdrawn March 1992. specific intent to do an act forbidden 14.06; Drew, law. Id. Decided March United States v. (9th Cir.1983), cert. de

nied, (1984);

L.Ed.2d 367 United States v. Pom 10, 12,

ponio,

L.Ed.2d

Goland’s intent the central issue at ambiguity regarding

trial. Because of the scope of the federal election relating and the

laws excluded evidence intent,

Goland’s I believe that Goland requisite support

lacked the mental state to

a conviction for excessive cam-

paign contributions. majority’s holding is a novel inter-

pretation ambiguous statutory terms. such,

As it is unfair to this new process requires

standard to Due Goland. person given

that a fair notice of what illegal may

constitutes conduct so that he requirements

conform his conduct to the Batchelder,

the law. United States v. 114, 123, 2198, 2203, * 34(a). panel 3(f) appropriate Fed.R.App.P. ‍​‌​​​‌‌​​‌​​‌‌​​‌‌​‌​‌​​​​​​‌‌‌​​‌‌​​​‌​‌​​​‌‌​​‍finds this case Circuit Rule submis- argument pursuant sion without oral to Ninth

Case Details

Case Name: United States v. Michael R. Goland

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 25, 1992

Citation: 959 F.2d 1449

Docket Number: 90-50423

Court Abbreviation: 9th Cir.