United States v. Kenneth Smukler ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 19-2151
______________
UNITED STATES OF AMERICA
v.
KENNETH SMUKLER,
Appellant
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-17-cr-00563-002)
District Judge: Honorable Jan E. DuBois
______________
Argued June 17, 2020
Before: JORDAN, MATEY, ROTH, Circuit Judges.
(Filed: January 26, 2021)
Eric L. Gibson, Esq. (Argued)
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
Peter Goldberger, Esq. (Argued)
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Appellant
______________
OPINION
______________
MATEY, Circuit Judge.
Interpreting the term “willfully” can be a challenge. It
is a “chameleon word,” United States v. Starnes, 583 F.3d 196,
210 (3d Cir. 2009), and “[i]n any closely reasoned problem,
whether legal or nonlegal, chameleon hued words are a peril
both to clear thought and to lucid expression,” Bryan A.
Garner, A Dictionary of Modern Legal Usage 145 (2d ed.
1995) (quoting Wesley N. Hohfeld, Fundamental Legal
Conceptions 35 (1919) (reprint 1966)). But we take comfort
knowing that we do not struggle alone with this “notoriously
malleable” concept. Bryan v. United States, 524 U.S. 184, 202
(1998) (Scalia, J., dissenting). Indeed, “willfully” is “a word of
many meanings” whose definition is “dependent on the context
in which it appears.” Id. at 191 (majority opinion). And just as
a chameleon’s appearance depends on the surroundings, we
look to the whole text of a law to best “interpret the words
2
consistent with their ordinary meaning . . . at the time Congress
enacted the statute.” Wis. Cent. Ltd. v. United States, 138 S. Ct.
2067, 2070 (2018) (alteration in original) (internal quotation
marks omitted). We approach that task with a full box of
“traditional tools” of construction. Kisor v. Wilkie, 139 S. Ct.
2400, 2415 (2019). Aided by these principles, interpreting
“willfully” seems less troublesome.
Kenneth Smukler asks us to do just the opposite,
arguing for an exceptional understanding of “willfully” in
otherwise unexceptional statutes. But the ordinary
understanding of “willfully” is the best one. Smukler does,
however, rightly point out that the District Court departed from
our prior decisions when instructing the jury on two of his nine
counts of conviction. So we will vacate his conviction on those
counts. Smukler also brings a host of other procedural and
substantive challenges from his trial. Finding none with merit,
we will affirm his other convictions.
I. BACKGROUND
Kenneth Smukler made a thirty-year career in the rough
and tumble world of campaign politics. From mayors and city
councils, to members of Congress and presidents, Smukler
steered campaigns across Pennsylvania. And as an attorney,
Smukler developed familiar expertise with Federal Election
Commission (“FEC”) law. Then, as it sometimes does in
politics, things went wrong.
A. The 2012 Democratic Primary for the First
Congressional District of Pennsylvania
In 2012, United States Representative Bob Brady ran
for reelection to represent Pennsylvania’s First Congressional
3
District in Philadelphia. Jimmie Moore, a former Philadelphia
Municipal Court Judge, challenged Brady in the Democratic
primary. Moore struggled to raise money, so he personally
loaned his campaign about $150,000. It was not enough, and
Moore soon concluded that he would not win. He turned to
Plan B, reaching out to former Philadelphia Mayor Wilson
Goode to arrange a meeting between himself and Brady, with
Goode providing the “glue.” (App. at 971, 1555.)
In a scheme lacking only a smoke-filled backroom,
Moore, Goode, and Brady hashed out a deal for Moore to drop
out of the race. In exchange, Brady agreed to give Moore
$90,000 to pay off campaign debts and reimburse some of
Moore’s campaign loan. Of course, as Moore, Goode, and
Brady all knew, one candidate cannot bribe another candidate
to drop out of an election. They needed a plan to steer the
money to Moore. Brady suggested that he buy a poll that
Moore had conducted. The purpose was plain: “mov[e] money
from Bob Brady’s campaign to Jimmie Moore’s campaign.”
(App. at 1318.) With an agreement in place, Moore dropped
out of the race a few days later, clearing Brady’s path to the
Democratic nomination.
But the money still needed a mover, and Smukler
emerged as the middleman. Once Moore formally dropped out,
Smukler met with Moore “to make the arrangements” and “set
up the process for [Moore] to get the money.” (App. at 953,
1071.) Smukler proposed a three-part scheme. First, they
would set up a bogus corporation to receive the funds from the
Brady campaign. Then, Moore would create “some dummy
invoices.” (App. at 954, 1063.) Finally, Smukler would pay
Moore in three installments, through cash sent to Moore’s
4
campaign manager and romantic partner, Carolyn Cavaness. 1
For good measure, Smukler would route the payments to
Cavaness through the consulting firm of Donald “D.A.” Jones,
a political consultant working for Brady, for work that
Cavaness never performed. 2 All went as planned, including, of
1
Smukler advised Cavaness that the Brady campaign would
pay $65,000 in two installments for old polling data from the
Moore campaign. According to Smukler’s instructions, Moore
and Cavaness set up a shell company, CavaSense and
Associates, LLC, that would sell the old poll to Smukler.
Through the shell company, Cavaness would contract with
Voterlink Data Systems (“VDS”), a company operated by
Smukler, so that VDS would pay $65,000 in two installments
for the poll. On June 11, 2012, the Brady campaign paid VDS
$40,000 for “Survey and Polling Services.” Two days later,
VDS paid CavaSense the first installment of $40,000 in a check
signed by Smukler. On July 10, 2012, the Brady campaign
wrote another check to VDS in the amount of $25,000. One
week later, on July 17, 2012, VDS wrote CavaSense a second
check, also signed by Smukler, for $25,000. Both checks
arrived in Cavaness’ personal bank account shortly after
receipt.
2
Under Smukler’s plan, the Brady campaign would pay Jones
$25,000 and, in turn, Jones would pay Cavaness $25,000. A
plan Jones was comfortable with “[a]s long as it wasn’t [his]
money.” (App. at 1320.) On June 20, 2012, Cavaness sent
Jones an email with invoices from CavaSense, totaling
$25,000. Jones waited until he received the money from
Brady’s campaign before paying Cavaness. Then the Brady
campaign cut a check to Jones in the amount of $25,000 for
“Political Consulting.” Around seven days later, Jones sent a
check to CavaSense for $25,000. Cavaness did no work for
5
course, both campaigns omitting accurate reporting of any of
these transactions to the FEC.
B. The 2014 Democratic Primary for the Thirteenth
Congressional District of Pennsylvania
In 2014, former United States Representative Marjorie
Margolies launched a comeback bid. Like many elections,
congressional contests occur in two cycles: a primary election,
where candidates of the same political party square off,
followed by a general election between the prevailing
candidates of each party to decide who will represent the
people. Federal election law limits contributions to a candidate
in both phases. So while candidates may collect primary and
general election funds at any time, they cannot use general
election funds to pay for primary election expenses. That
means if a candidate loses the primary, the campaign refunds
any general election contributions to donors.
Margolies faced a crowded field of primary opponents
and hired Smukler to run her campaign. But as the race dragged
on, Margolies ran low on funds and Smukler dipped into the
general election reserve. It wasn’t enough; Smukler needed
more money to cover crucial campaign expenses like media
buys. So he leaned on friends and family to get cash quickly,
using them as straw men to evade federal election laws and
pass through money to the campaign. We detail several of
those donations and associated misrepresentations.
Jones in exchange for the cash. In fact, when Cavaness sent the
invoices, Jones had “never met her.” (App. at 1328.)
6
1. Smukler Sends $78,750 to the Margolies
Campaign
On April 29, 2014, Smukler emailed Jennifer May,
Treasurer of the Margolies campaign, “I will be wiring $78,750
of the segregated media account funds into the campaign media
account.” (Supp. App. at 461.) No such “segregated media
account” existed. A few days later, he wired $78,750 from his
personal brokerage account to another of his companies, Black
and Blue Media. From there, he wired the same amount from
Black and Blue Media to a new Margolies campaign account
to quickly pay vendors. Then Smukler asked his brother for
$75,000, which his brother promptly sent to Smukler’s
brokerage.
2. The Campaign Spends Money Earmarked for the
General Election and Smukler Steers Another
$150,000 to Cover the Difference
Still short on cash, Smukler directed May to use general
election funds on the primary. A deficit soon swelled, as the
primary fund declined to a negative cash on hand of $126,761
and change. Then, Margolies lost the primary, leaving the
campaign sixty days to refund all general election
contributions. May suggested that Margolies pay the deficit
herself, a lawful option that Smukler declined. Instead, he
asked campaign officials, including May, to tell him “exactly
what amount [Smukler’s two companies:] InfoVoter and Black
[and] Blue need to return to the campaign to reconcile all
general fund contributions” as he “intend[ed] to transfer [the
money].” (App. at 774.) Sensibly, May concluded that if
Margolies did not write a check for the overage, “we are all in
really big trouble.” (App. at 2212.)
7
May was correct; Smukler was undeterred. He surprised
May with the claim that the Margolies campaign “did not
spend the general [election] money as it was escrowed in”
Smukler’s consulting company InfoVoter. (App. at 2212.)
“[O]nce the money is refunded,” Smukler explained, “all the
general [election] checks will be issued within the [sixty-day]
period.” (App. at 2212.) That same day, an old friend of
Smukler’s, Kevin Morgan, wired $150,000 into Smukler’s
personal brokerage account. Two days later, Smukler wired
$40,000 from his personal account to Black and Blue Media
and $110,000 from his personal account to InfoVoter. It all
wound up in the Margolies campaign in two separate transfers
from Black and Blue Media and InfoVoter. Smukler directed
both payments to appear as “[r]efund[s]” on the next FEC
report. (App. at 610, 791–800; Supp. App. at 194.) 3
3. Smukler Conceals the Transfers
Smukler had another problem. Back in April, one of
Margolies’ opponents filed a complaint with the FEC alleging
that the campaign had spent general election contributions on
primary election expenses. That was true, so Smukler spun a
false tale to the campaign’s attorney, causing him to lie in the
campaign’s response to the FEC. Based on Smukler’s
representations, the campaign’s attorney wrote to the FEC that
3
As in 2012, Smukler used Jones as a “pass-through.”
(App. at 1356.) He asked Jones to write a check to the
Margolies campaign, for which he would reimburse Jones for
the contribution. Which Smukler did by sending Jones a check
from InfoVoter in the amount of $2,600. Jones only made the
payment with the guarantee that Smukler would pay him for it.
8
the Margolies campaign had “agreed to advance a portion of
[general election] funds” to certain “campaign vendors in order
to secure their services . . . for the general election.” (App. at
2230.) But because “[t]he advanced funds would . . . pay for
general election . . . expenses of the vendors,” after Margolies
lost the primary, the vendors “refunded the advanced payments
to the committee.” (App. at 2230.) Smukler’s argument
benefited from apparent support from the campaign’s FEC
filings, which had also described the payments from Smukler’s
companies as “refunds.” (App. at 610, 791–800; Supp. App. at
194.) Based on the letter, the FEC dismissed the complaint.
4. The Margolies Conduit Contribution
The hasty movement of money between Smukler’s
companies and the campaign eventually caught the eye of the
FEC. For one thing, Smukler’s companies “refunded” the
Margolies campaign $18,000 more than the campaign paid.
But companies cannot send back more than they received
without categorizing the payment as a corporate contribution.
The campaign told the FEC that the discrepancy was a mere
error and returned $18,000 back to InfoVoter. That caused
more problems by putting the now-defunct campaign back into
debt. Ever ready with a solution, Smukler told Margolies that
although she was on the hook, he would cover the deficit and
“write a check for [$]25,000” from Black and Blue Media “and
that [she] would then write a check” back to the campaign.
(App. at 1216, 1237–40.) She did so. The campaign classified
it as a loan on the next FEC report.
C. Tolling Agreements, Indictment, Trial, and Appeal
All of this consulting attracted the interest of law
enforcement. With investigations mounting, Smukler and the
9
Government entered into two tolling agreements “regarding
charges arising out of a payment from the Bob Brady for
Congress campaign committee on or about August 23, 2012 to
D. Jones & Associates in the amount of $25,000 and the
subsequent use of that money by D. Jones & Associates.” 4
(App. at 133, 133–39.) The first agreement extended the time
for the Government to bring certain charges against Smukler
from August 23, 2017 to September 26, 2017, while the second
agreement extended the statute of limitations from September
26, 2017 to October 26, 2017. 5 A grand jury later returned a
4
Both agreements advise Smukler that “the United
States contends that this conduct may give rise to a number of
violations of federal criminal law, including but not limited to
Title 18, United States Code, Sections 2 (aiding and abetting),
371 (conspiracy), and 1001 (false statements), and Title 52,
United States Code, Section 30109 (campaign finance
violations).” (App. at 133, 137.) In both agreements, Smukler
also acknowledges that he “understand[s] that by agreeing to
toll, and thus not to assert, the claim of statute of limitations,
[he is] giving up any rights [he] may have under the federal
statute of limitations provisions regarding charges that may
result from the investigation described in this document.”
(App. at 134, 138.)
5
The tolling provision in the second agreement is more
broadly worded: “I hereby agree to toll any applicable statute
of limitations regarding charges arising out of a payment from
the Bob Brady for Congress campaign committee on or about
August 23, 2012 to D. Jones & Associates in the amount of
$25,000 and the subsequent use of that money by D. Jones &
Associates, as well as any charges arising out of campaign
finance reports filed by Bob Brady for Congress and Jimmie
10
superseding indictment charging Smukler with eleven counts
of various election law offenses related to both the 2012 and
2014 congressional elections. 6 Following trial, a jury returned
Moore for Congress, from September 26, 2017 to October 26,
2017.” (App. at 137–38 (emphasis added).)
6
The grand jury returned an original indictment on
October 24, 2017, charging Smukler and then-co-defendant
Jones with certain election law offenses relating to former
Congressman Bob Brady’s 2012 primary campaign. Jones later
pleaded guilty and cooperated against Smukler. Along with
charges related to Smukler’s work on the 2012 Brady
campaign, the March 20, 2018 superseding indictment charged
Smukler with offenses related to the Margolies 2014 campaign.
Counts I through V of the superseding indictment
related to the 2012 congressional primary campaign. Those
counts charged Smukler with: conspiracy to commit campaign
law violations and to make false statements, in violation of 18
U.S.C. § 371 (Count I); causing campaign contributions in
excess of federal limits, in violation of 52 U.S.C.
§§ 30109(d)(1)(A)(i), 30116(f), and 18 U.S.C. § 2 (Count II);
causing the Brady campaign committee to make false reports
to the FEC, in violation of 52 U.S.C. §§ 30104(a)(1),
30104(b)(5)(A), 30109(d)(1)(A)(i), and 18 U.S.C. § 2 (Count
III); causing the Moore campaign committee to make false
reports to the FEC, in violation of 52 U.S.C. §§ 30104(a)(1),
30104(b)(5)(A), 30109(d)(1)(A)(i), and 18 U.S.C. § 2 (Count
IV); and engaging in a scheme to falsify and conceal facts from
the FEC, in violation of 18 U.S.C. §§ 2 and 1001(a)(1) (Count
V).
Counts VI through XI related to Marjorie Margolies’
2014 congressional primary campaign. Those counts charged
Smukler with: engaging in a scheme to falsify and conceal facts
11
a guilty verdict on nine of the eleven charges, acquitting
Smukler on the remainder. He received a sentence of eighteen
months’ imprisonment, along with fines and assessments.
Smukler now challenges on appeal a mix of procedural and
substantive issues from his trial.
First, Smukler argues that the District Court incorrectly
instructed the jury on the mens rea element of the federal
criminal laws requiring the Government to prove that Smukler
acted “willfully.” The District Court explained that “the
Government must prove beyond a reasonable doubt that
defendant knew his conduct was unlawful and intended to do
something that the law forbids.” (App. at 1943.) “That is,” the
Court continued, “to find that the defendant acted willfully,
you must find that the evidence proved beyond a reasonable
doubt that defendant acted with a purpose to disobey or
disregard the law.” (App. at 1943.) Smukler sought different
from the FEC, in violation of 18 U.S.C. §§ 2 and 1001(a)(1)
(Count VI); making campaign contributions in excess of
federal limits, in violation of 52 U.S.C. §§ 30109(d)(1)(A)(i),
30116(f), and 18 U.S.C. § 2 (Count VII); making $2,000 or
more in conduit contributions in the name of another, in
violation of 52 U.S.C. § 30109(d)(1)(A)(ii), 30116(f), 30122,
and 18 U.S.C. § 2 (Count VIII); making $10,000 or more in
conduit contributions in the name of another, in violation of 52
U.S.C. § 30109(d)(1)(D), 30116(f), 30122, and 18 U.S.C. § 2(Count IX); causing a campaign committee to make false
reports to the FEC, in violation of 52 U.S.C. §§ 30104(a)(1),
30104(b)(5)(A), 30109(d)(1)(A)(i), and 18 U.S.C. § 2 (Count
X); and obstruction of justice, in violation of 18 U.S.C. §§ 2and 1505 (Count XI).
12
language: that “the government must prove beyond a
reasonable doubt that the defendant knew of the specific law
prohibiting the conduct at issue, and that he acted with the
intent to violate that specific law.” (App. at 312.) In rejecting
Smukler’s proposed instruction, the District Court explained
that it would follow “the mens rea standard of willfulness
based on [the] Third Circuit Model Jury Instructions . . . and
will not cover [Smukler’s] inconsistent instructions requested
on that issue.” (App. at 12–13.) Smukler argues that because
the Government charged him with violations in the federal
election law context, our precedent required the District Court
to charge the jury under a “heightened” standard of “willfully.”
Second, Smukler claims the District Court erred when
it denied his motion to dismiss Count II of the superseding
indictment. Count II charged that Smukler “willfully caused
contributions to the Jimmie Moore for Congress campaign in
excess of the limits of the Election Act,” based on the three
payments totaling $90,000 made from the Brady campaign in
exchange for Moore’s withdrawal from the race. (App. at 109.)
Those payments included (1) the June 11, 2012 payment of
$40,000 routed through VDS; (2) the July 10, 2012 payment of
$25,000, also sent through VDS; and (3) the August 23, 2012
payment of $25,000 steered through D. Jones & Associates.
Smukler argued that the tolling agreement did not cover two of
the three alleged payments, leaving those payments outside the
statute of limitations. The District Court disagreed, and held
that under United States v. Dees, 215 F.3d 378 (3d Cir. 2000),
as applied to the Federal Election Campaign Act (“FECA”),
“[t]he Government properly charged that [Smukler] and his co-
conspirators caused payments aggregating at least $25,000 in
a calendar year, between June 2012 and August 2012,” (App.
at 25.), as “the offense . . . was completed on the date of the
13
last payment and the statute of limitations began running at that
time,” (App. at 23.)
Third, Smukler challenges the sufficiency of the
evidence to support his conviction on Count V. That count
charged Smukler with causing the Brady and Moore
campaigns to make false reports to the FEC, in violation of 18
U.S.C. §§ 1001(a)(1) and 2(b). On appeal, Smukler argues that
the evidence could not prove that he “caused the Brady or
Moore campaign to report or fail to report anything to the
FEC.” (Opening Br. at 36.)
Finally, Smukler contends that the District Court erred
by failing to give specific unanimity charges as to Counts V
and X. Each of those counts, Smukler claims, “charged two
different acts,” that “independently constituted a criminal
offense under the statute(s) cited,” thereby violating his right
to a unanimous jury verdict. (Opening Br. at 40.)
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 because
Smukler appeals from the final judgment of the District Court.
The parties dispute our standard of review for the
District Court’s “willfully” instruction. (Compare Opening Br.
at 23, with Response Br. at 29.) Both cite authority that traces
to United States v. Zehrbach, where we considered the basis
for an objection to a jury instruction on a record “not entirely
clear.” 47 F.3d 1252, 1260 (3d Cir. 1995) (en banc). On the
one hand, “if the objection is construed as a challenge to the
court’s statement of the legal standard, we exercise plenary
review.” Id. On the other, if “the objection [is] read as a
14
challenge merely to the confusing nature of the instruction,”
we will “review the trial court’s expression for abuse of
discretion.” Id. at 1260, 1264. Smukler disputes only the legal
standard behind the District Court’s instruction. So “[w]e
exercise plenary review over [Smukler’s] challenges to the
legal standards expressed in jury instructions.” United States v.
Korey, 472 F.3d 89, 93 (3d Cir. 2007) (citing Zehrbach, 47
F.3d at 1260).
Our review of Smukler’s claim that the District Court
erred in rejecting his motion to dismiss Count II is mixed.
United States v. Menendez, 831 F.3d 155, 164 (3d Cir. 2016).
We “review the District Court’s legal conclusions de novo and
its factual determinations, including its findings about the
contents and purposes of the acts alleged in the Indictment, for
clear error.” Id. As to Smukler’s claim that the evidence could
not support the jury’s verdict on Count V for causing false
statements to the FEC, our review is “highly deferential.”
United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d
Cir. 2013) (en banc). We “will overturn a verdict only ‘if no
reasonable juror could accept the evidence as sufficient to
support the conclusion of the defendant’s guilt beyond a
reasonable doubt.’” Id. at 430–41 (quoting United States v.
Coleman, 811 F.2d 804, 807 (3d Cir. 1987)).
Last, we review Smukler’s claim that the District Court
erred by not instructing the jury on specific unanimity as to
Counts V and X for plain error because Smukler failed to
object to this issue at trial. United States v. Gonzalez, 905 F.3d
165, 182 (3d Cir. 2018).
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III. INTERPRETING “WILLFULLY”
Much of our task involves interpretation, a familiar
pursuit because Congress does not always define each word in
a statute. That does not invite invention. “After all, if judges
could freely invest old statutory terms with new meanings, we
would risk amending legislation outside the ‘single, finely
wrought and exhaustively considered, procedure’ the
Constitution commands.” New Prime Inc. v. Oliveira, 139 S.
Ct. 532, 539 (2019) (quoting INS v. Chadha, 462 U.S. 919, 951
(1983)). Instead, we rely on the “fundamental canon of
statutory construction” requiring that we “interpret the words
consistent with their ordinary meaning . . . at the time Congress
enacted the statute.” Wis. Cent. Ltd., 138 S. Ct. at 2070, 2074(alteration in original) (internal quotation marks omitted); see
also United States v. Johnman, 948 F.3d 612, 617 (3d Cir.
2020). It is a focused inquiry and “[o]ur analysis begins and
ends with the text.” Little Sisters of the Poor Saints Peter &
Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2380 (2020)
(quoting Octane Fitness, LLC v. ICON Health & Fitness, Inc.,
572 U.S. 545, 553 (2014)). We rely on our “toolkit” containing
“all the standard tools of interpretation” used to “carefully
consider the text, structure, history, and purpose” of the statute.
Kisor, 139 S. Ct. at 2414–15 (internal quotation marks and
alteration omitted). That allows us to “‘reach a conclusion
about the best interpretation,’ thereby resolving any perceived
ambiguity.” Shular v. United States, 140 S. Ct. 779, 788 (2020)
(Kavanaugh, J., concurring) (quoting Kisor, 139 S. Ct. at 2448(Kavanaugh, J., concurring in the judgment)). With that
framework as our guide, we turn first to Smukler’s objection
to the jury instruction on “willfully.”
16
A. “Willfully” and the Criminal Law
Interpreting the legal term “willfully” is a good
example of a “hard interpretive conundrum[].” Kisor, 139 S.
Ct. at 2415. Sometimes, and “[m]ost obviously,” “[willfully]
differentiates between deliberate and unwitting conduct.”
Bryan, 524 U.S. at 191. “[B]ut in the criminal law,” the word
“also typically refers to a culpable state of mind.” Id. Often,
that requires the Government to “prove that the defendant acted
with knowledge that his conduct was unlawful.” Id. at 192(quoting Ratzlaf v. United States, 510 U.S. 135, 137 (1994)).
Often, but not always. Sometimes “a more
particularized [‘willfully’] showing is required.” Id. Then, “the
jury must find that the defendant was aware of the specific
provision of the [statute] that he was charged with violating.”
Id. at 194 (citing Cheek v. United States, 498 U.S. 192, 201
(1991)). In Bryan, the Supreme Court explained that
prosecutions “involv[ing] highly technical statutes that
presented the danger of ensnaring individuals engaged in
apparently innocent conduct,” id., justified a “carve out . . .
exception to the traditional rule that ignorance of the law is no
excuse,” id. at 195 (internal quotation marks and alteration
omitted). Under this narrow departure from the ordinary legal
meaning of “willfully,” the Government must “pro[ve] that the
defendant was subjectively aware of the duty at issue, [which]
would avoid . . . unfair results.” Id. at 195 n.22 (quoting United
States v. Aversa, 984 F.2d 493, 502 (1st Cir. 1993) (Breyer,
C.J., concurring)). But the Court has limited the “need for
[mens rea] specificity” only to certain cases involving the tax
code and similarly complex laws governing financial
institutions. Id. at 194–95 & n.22 (citing Cheek, 498 U.S. at
201; Ratzlaf, 510 U.S. at 138, 149); see also Aversa, 984 F.2d
17at 502 (Breyer, C.J., concurring) (observing that “criminal
prosecutions for ‘currency law’ violations . . . very much
resemble criminal prosecutions for tax law violations” because
“[b]oth sets of laws are technical; and both sets of laws
sometimes criminalize conduct that would not strike an
ordinary citizen as immoral or likely unlawful”).
Smukler and the Government dispute which
interpretation of “willfully” should apply here. 7 We have
already answered that question and applied the heightened
“willfully” standard to prosecutions under 18 U.S.C. §§ 2(b)
and 1001 “in the federal election law context.” United States v.
Curran, 20 F.3d 560, 569 (3d Cir. 1994). That requires us to
vacate Smukler’s convictions at Counts V and VI. But we will
uphold Smukler’s convictions on all other counts, because
FECA is best read to contain the ordinary meaning of
“willfully.”
1. Judicial Interpretations of “Willfully”
Smukler’s argument proceeds from a mistaken reading
of caselaw, not the best reading of the statute. Recall that he
7
Count XI charged Smukler with obstruction of justice,
in violation of 18 U.S.C. §§ 2 and 1505, and did not require
proof of willfulness. “To prove a violation of § 1505, the
government must show: ‘(1) that there was an agency
proceeding; (2) that the defendant was aware of that
proceeding; and (3) that the defendant intentionally
endeavored corruptly to influence, obstruct or impede the
pending proceeding.’” United States v. Warshak, 631 F.3d 266,
325 (6th Cir. 2010) (quoting United States v. Bhagat, 436 F.3d
1140, 1147 (9th Cir. 2006)). So we will uphold his conviction
on this count.
18
asked for a jury instruction incorporating a heightened
“willfully” standard requiring the Government to prove both
that he knew the specific law prohibiting his actions and that
he intended to violate that specific law. His support is our
decision in Curran holding “that a proper charge for
willfulness in cases brought under sections 2(b) and 1001 [of
Title 18] in the federal election law context requires the
prosecution to prove that [the] defendant knew of the [specific
legal] obligations, that he attempted to frustrate those
obligations, and that he knew his conduct was unlawful.” 20
F.3d at 569. Smukler urges us to extend Curran’s heightened
“willfully” standard to all charges brought under section 2(b)
and FECA. But that conflicts with both our precedent and an
ordinary interpretation of “willfully.”
An overview of our jurisprudence cases sets the stage.
Curran relies on the Supreme Court’s opinions in Cheek and
Ratzlaf, cases involving federal tax and financial laws. Both
are notable for their rarity. Cheek held that a mens rea of
“willfully” in the criminal tax statutes 26 U.S.C. §§ 7201 and
7203 required actual knowledge of the relevant legal duty. 498
U.S. at 202–07. The Court reasoned that the “average citizen”
often struggles to comply with our nation’s sprawling tax
system. Id. at 199–200. From that assumption, the Court
intuited that Congress had “softened the impact of the
common-law presumption by making specific intent to violate
the law an element of certain federal criminal tax offenses.” Id.
at 200. But the Court was quick to acknowledge the “general
rule” “deeply rooted in the American legal system”:
“[I]gnorance of the law or a mistake of law is no defense to
criminal prosecution.” Id. at 199.
A similar conclusion arrived in Ratzlaf, a case involving
cash structuring contrary to 31 U.S.C. §§ 5322(a) and 5324(3).
19
Concerned that these complex provisions might trip up
ordinary people, the Court held that establishing “willful”
violations of structuring requires the government to prove
knowledge that the specific structuring behavior was unlawful.
Ratzlaf, 510 U.S. at 141, 144–46, 149. But as in Cheek, the
Court emphasized these circumstances represented the
extraordinary instance where ignorance of the law was a
defense to a criminal charge. Id. at 149.
We decided Curran shortly after Ratzlaf. Both cases
concerned disclosure obligations imposed by regulatory laws.
Curran, 20 F.3d at 569. And both involved prosecution under
statutes with a mens rea of “willfully.” See id. at 568. Given
these similarities, we applied the Cheek-Ratzlaf standard to
tandem charges brought under 18 U.S.C. §§ 2(b) and 1001 in
the elections context. Id. at 569. But more recent decisions
from the Supreme Court, and ours, clarify that Cheek and
Ratzlaf do not sweep further. Rather, they remain the
exceptions that prove the rule.
Take Bates v. United States, where the Supreme Court
considered the meaning of 20 U.S.C. § 1097(a), which makes
it a felony to “knowingly and willfully” misapply student loan
funds insured under Title IV of the Higher Education Act of
1965. There, the petitioner urged the Court to find, as in
Ratzlaf, that the actual intent to defraud was an essential,
although unexpressed, element of the offense. Bates v. United
States, 522 U.S. 23, 30 (1997). But the Court rejected any
comparison: “Ratzlaf,” it wrote, turned on the “particular
statutory context” of complex currency structuring
transactions. Id. at 31 n.6.
The Supreme Court was even clearer a year later in
Bryan construing the prohibition on interstate transfers of
20
firearms in 18 U.S.C. § 922(a)(1)(A). The petitioner argued
that the Cheek-Ratzlaf standard required the government prove
he knew about the federal licensing regime. Bryan, 524 U.S. at189–90. But the Court distinguished Ratzlaf and Cheek as
matters “involv[ing] highly technical statutes that presented the
danger of ensnaring individuals engaged in apparently
innocent conduct.” Id. at 194. “[W]illfulness,” the Court
admonished, does not “carve out an exception to the traditional
rule that ignorance of the law is no excuse.” Id. at 196. And it
reaffirmed that logic in Safeco Ins. Co. of Am. v. Burr,
characterizing readings of willfulness that require “specific
intent to violate a known legal duty” as, again, applying to
“highly technical statutes.” 551 U.S. 47, 57 n.9 (2007) (citing
Cheek, 498 U.S. at 200–01).
We have followed the same path. In Starnes, guided by
Bryan, we observed that “willfully” has “at least three levels of
interpretation.” Starnes, 583 F.3d at 210. In some contexts,
“willfully” may indicate “an act which is intentional, or
knowing, or voluntary, as distinguished from accidental.” Id.(internal quotation marks omitted). In others, particularly in the
criminal context, it may require the government to prove that
the defendant acted “not merely voluntarily, but with a bad
purpose, that is, with knowledge that his conduct was, in some
general sense, unlawful.” Id. (internal quotation marks
omitted). And finally, “in some rare instances,” we observed
that “‘willfully’ has been read to require proof that the
defendant actually knew of the specific law prohibiting the
conduct.” Id. at 211 (emphasis added). But like Bryan, we
pointed out that these unusual cases involve only “highly
technical statutes” and, in Curran, the unusual instance of a
tandem election prosecution brought under 18 U.S.C. §§ 2(b)
and 1001. Id.; accord United States v. Stadtmauer, 620 F.3d
21238, 256 (3d Cir. 2010) (“The justification for requiring
knowledge of the relevant tax laws is that, ‘in our complex tax
system, uncertainty often arises even among taxpayers who
earnestly wish to follow the law, and it is not the purpose of the
law to penalize frank difference[s] of opinion or innocent
errors made despite the exercise of reasonable care.’”
(alteration in original) (quoting Cheek, 498 U.S. at 205)).
Smukler reaches for the rarest meaning, pushing to
extend the extraordinary Cheek-Ratzlaf “willfully” standard
not just to the charges brought under 18 U.S.C. §§ 2(b) and
1001, but to his substantive FECA charges as well. Curran, he
maintains, requires as much. It does not. As the Supreme Court
and we have repeatedly explained, the Cheek-Ratzlaf
interpretation applies to “complex[],” Cheek, 498 U.S. at 200,
or “highly technical,” Bryan, 524 U.S. at 194, statutes. And
Smukler does not specify what about FECA he finds to be
“complex” or “highly technical.” He protests its length in a
footnote. (See Reply Br. at 4 n.5.) True enough, as FECA packs
in rules for contributions (and a host of other conduct) that
candidates, campaigns, and contributors must follow when
engaging in election politicking. But those rules are reasonably
straightforward and written in common terms. One provision
sets forth the contribution limits applicable to every
congressional candidate in each election cycle. 52 U.S.C.
§ 30116. Another makes it unlawful for individuals to
contribute in the names of others. Id. § 30122. A third requires
honestly reporting contributions received to the FEC. Id. §
30104. Civil and criminal penalties can result from a
“knowing[] and willful[]” violation of FECA. Id. § 30109(d).
But “compared with anti-structuring or tax laws, as in Ratzlaf
or Cheek, individual campaign contribution laws are more
intuitive and less complex.” United States v. Danielczyk, 788
22
F. Supp. 2d 472, 490 (E.D. Va. 2011), reversed in part on other
grounds, 683 F.3d 611 (4th Cir. 2012). All of which speaks to
an ordinary, not extraordinary, set of prohibitions. Consistent
with precedent, we likewise apply the ordinary reading of
“willfully” to FECA.
2. Applying Familiar Principles of Interpretation
Smukler next suggests that the Cheek-Ratzlaf
heightened “willfully” standard is warranted since his FECA
offenses follow the “aiding and abetting” prohibitions of 18
U.S.C. § 2(b). 8 Section 2(b) of Title 18 makes it a crime for a
person to “willfully cause[] an act to be done which if directly
performed by him . . . would be an offense against the United
States.” The statute “imposes liability on a defendant who does
not himself commit the prohibited actus reus, but intentionally
manipulates an innocent intermediary to commit the prohibited
actus reus.” United States v. Gumbs, 283 F.3d 128, 134 (3d
Cir. 2002). As we explained, Curran held that the mens rea
element required under § 2(b) for causing a false statement in
violation of 18 U.S.C. § 1001 goes beyond the mens rea
required by § 1001 and applied the Cheek-Ratzlaf reading of
“willfully.” 9 See 20 F.3d at 567–69. Smukler seems to contend
8
The substantive FECA charges alleged in Counts II,
VII, VIII, IX, and X all require proof that Smukler acted
“willfully.” He was also charged with “willfully caus[ing]” the
violations. The Government acknowledges that Smukler did
not personally transmit false statements to the FEC, so Counts
V, VI, and X require proof that he “willfully cause[d]” those
acts under 18 U.S.C. § 2(b).
9
We have divorced 18 U.S.C. § 1001 from the Cheek-
Ratzlaf heightened willfully requirement when not paired with
23
we must do the same for his FECA offenses charged under §
2(b), even if the “willfully” mens rea in his substantive FECA
charges would not be so read. (It will not, as we already
explained.)
§ 2(b). In Starnes, we applied 18 U.S.C. § 1001(a)’s false
statements statute to a regulatory scheme that subjected the
defendants to criminal liability under the Clean Air Act. There,
we noted that Curran, relying on Ratzlaf, “held that the strictest
interpretation of criminal willfulness governed tandem
violations of §§ 1001 and 2(b) in the ‘federal election law
context.’” Starnes, 583 F.3d at 211. But since that case
involved neither § 2(b) nor election law, Curran’s heightened
standard did not apply. Instead, we held that § 1001’s
“knowingly and willfully” requirement meant that the
government must only show that “a defendant acted
deliberately and with knowledge that the representation was
false.” Id. (quoting Curran, 20 F.3d at 567). That result, we
wrote, “comports with the generally understood meaning of
‘knowingly’ and with the intermediate level of interpretation
of ‘willfully’ articulated by the Supreme Court in Bryan—that
is, knowledge of the general unlawfulness of the conduct at
issue—which we believe adequately demarcates the boundary
between innocent and unlawful conduct in this context.” Id. at
211–12 (citing Bryan, 524 U.S. at 195 & n. 23). And we
rejected the suggestion that a mens rea of “knowingly and
willfully” required “the government . . . to prove that [the
defendant] actually knew of [the law allegedly violated].” Id.
at 212. So too here. See, e.g., 52 U.S.C. § 30109(d)(1)(A)
(FECA penalty provision with mens rea of “knowingly and
willfully”).
24
We have declined that approach in other prosecutions
under 18 U.S.C. § 2(b). For example, in Gumbs, we considered
a tandem prosecution brought under 18 U.S.C. §§ 2(b) and 287.
There, we clarified Curran, explaining that “in a prosecution
under [18 U.S.C.] § 2(b), the government must show the
following mens rea elements: (1) that the defendant had the
mens rea required by the underlying statute; and (2) that the
defendant willfully caused the innocent intermediary to
commit the act prohibited by the underlying statute.” Gumbs,
283 F.3d at 135. In other words, § 2(b) does not automatically
alter the “most natural interpretation” of “willfully.” United
States v. Gabriel, 125 F.3d 89, 101 (2d Cir. 1997) (“The most
natural interpretation of section 2(b) is that a defendant with
the mental state necessary to violate the underlying section is
guilty of violating that section if he intentionally causes
another to commit the requisite act.” (emphasis omitted)); see
also United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999)
(“The natural reading of §§ 2(b) and 1001 is this: the
government may show mens rea simply by proof (1) that the
defendant knew that the statements to be made were false (the
mens rea for the underlying offense—§ 1001) and (2) that the
defendant intentionally caused such statements to be made by
another (the additional mens rea for § 2(b)).”).
Under Smukler’s approach, we would apply the Cheek-
Ratzlaf heightened standard of “willfully” to FECA offenses
when paired with an aiding and abetting charge. No matter, he
says, that this would require us to apply different meanings to
the same word in the same statute. But our interpretive kit
includes no such tool. Rather, it is a fundamental interpretive
norm that “[a] term appearing in several places in a statutory
text is generally read the same way each time it appears.”
25
Ratzlaf, 510 U.S. at 143. 10 “[W]hether section 2(b) require[s] a
knowing violation of the law” cannot “turn on the context in
which the statement was made.” Gabriel, 125 F.3d at 101.
“Moreover, if a defendant was prosecuted under section 2(b)
and a criminal section other than section 1001,” as here,
“whether section 2(b) required a knowing violation of the law
would turn not only on the nature of the other section but also
on the context of the alleged violation of that section.” Id. As
the Second Circuit hypothesized, “[a]side from the obvious
interpretative difficulties that this approach would take,”
giving “willfully” a malleable interpretation under § 2(b)
would make it dependent on the context of the underlying
statute. Id. So “however ‘willfully’ is to be interpreted under
section 2(b), it should be interpreted consistently.” Id.
We agree. As a result, we decline Smukler’s invitation
to “open Pandora’s jar,” by “reading [‘willfully’] differently
for each code section to which it applies.” Ratzlaf, 510 U.S. at
143. The District Court’s instructions to the jury were therefore
proper.
10
We note that while Curran tethers its approach to
Ratzlaf, other courts have disagreed. See Hsia, 176 F.3d at 522(noting that Curran “extends Ratzlaf too far”); see also
Gabriel, 125 F.3d at 101 (concluding Curran “focused its
attention almost exclusively on the federal election laws and
explicitly limited its decision to ‘cases brought under sections
2(b) and 1001 in the federal election law context’—indicating
that in other contexts, the court might interpret section 2(b)’s
‘willfully’ requirement differently” (quoting Curran, 20 F.3d
at 569)).
26
B. Smukler’s Convictions at Counts V and VI
Contravene Curran
Counts V and VI charged Smukler with violating 18
U.S.C. §§ 2 and 1001(a)(1) by causing the false statements of
others within the Brady and Margolies campaigns. On these
counts, the District Court’s instruction on “willfully” missed
the mark established by Curran. As we explained, under
Curran, “a proper charge for willfulness in cases brought under
[18 U.S.C. §§] 2(b) and 1001 in the federal election law
context requires the prosecution to prove that defendant knew
of the [statutory] obligations, that he attempted to frustrate
those obligations, and that he knew his conduct was unlawful.”
20 F.3d at 569; see also Starnes, 583 F.3d at 211 (noting
Curran “held that the strictest interpretation of criminal
willfulness governed tandem violations of §§ 1001 and 2(b) in
the federal election law context” (internal quotation marks
omitted)).
Counts V and VI charged Smukler with such “tandem”
violations of §§ 1001 and 2(b). The supporting allegations
center on Smukler’s actions during the Brady and Margolies
campaigns, so they occurred “in the federal election law
context.” Curran, 20 F.3d at 569. While Curran’s “federal
election law context” modification is too broad in other
scenarios, it does apply to these counts.
The Government brings two arguments in rebuttal, but
neither prevails. First, that Bryan abrogated Curran. It did not,
as the Supreme Court limited its holding. See Bryan, 524 U.S.
at 199–200 (“[O]ur grant of certiorari was limited to the narrow
legal question whether knowledge of the licensing requirement
[of 18 U.S.C. § 924(a)(1)(D)] is an essential element of the
offense.”). So we must follow the narrow holding in Curran.
27
Second, even if the District Court erred, any error was
harmless. Not so. For error to be harmless, we must “conclude
beyond a reasonable doubt that the jury verdict would have
been the same absent the error.” Neder v. United States, 527
U.S. 1, 19 (1999). “When the error involves a mens rea
instruction, ‘[a] verdict may still stand, despite erroneous jury
instructions, where the predicate facts conclusively establish
[mens rea], so that no rational jury could find that the defendant
committed the relevant criminal act’ without also finding the
requisite mens rea.” United States v. Elonis, 841 F.3d 589, 598
(3d Cir. 2016) (alterations in original) (quoting Whitney v.
Horn, 280 F.3d 240, 260 (3d Cir. 2002)).
Based on our holding in Curran, the District Court’s
instructions did not provide the proper guidance. The jury
needed to consider Smukler’s culpability based on the
heightened “willfully” standard—that Smukler knew the legal
duty of the particular laws charged. After reviewing the record,
we cannot conclude that “no reasonable jury could find that
th[is] element was not present.” United States v. Andrews, 681
F.3d 509, 527 (3d Cir. 2012). So we will vacate Smukler’s
conviction on these counts.
IV. SMUKLER’S OTHER CHALLENGES LACK MERIT
Smukler brings three remaining challenges to his
convictions. First, he argues that the District Court erred by not
finding a portion of Count II outside the statute of limitations.
Second, he attacks the sufficiency of the evidence produced on
Count V. Finally, he sees error in the District Court’s failure to
give specific unanimity charges to the jury on Counts V and X.
We have already held that Smukler’s conviction at Count V
will be vacated because of the faulty jury instruction on
“willfully,” so we need not reach his other arguments on that
28
count. As to Smukler’s other challenges, we find no error and
will affirm.
A. The District Court Did Not Err in Rejecting
Smukler’s Motion to Dismiss Count II
Count II of the superseding indictment charged Smukler
with violating 52 U.S.C. §§ 30109(d)(1)(A)(i) and 30116, by
knowingly and willfully causing the Brady campaign to make
contributions to the Moore campaign in excess of the limits of
FECA, at an aggregated amount of $25,000 or more. 11 Recall
the basis: the three payments Smukler steered from the Brady
campaign to the Moore campaign. The first, a June 11, 2012
payment of $40,000 routed through VDS, a Smukler-owned
consulting company. The second, a July 10, 2012 payment of
$25,000 sent through VDS. And the third, an August 23, 2012
payment of $25,000 from Smukler’s associate Jones to
Cavaness. Smukler argues two of the three contributions fell
outside the statute of limitations. We disagree.
Since the last of the three payments occurred on August
23, 2012 and the grand jury did not indict Smukler until
October 24, 2017, the indictment would ordinarily be outside
FECA’s five-year statute of limitations. See 52 U.S.C.
§ 30145. But before the statute of limitations ran on the August
11
FECA makes it a crime to “knowingly and willfully
commit[] a violation” that “involves the making . . . of any
contribution . . . aggregating $25,000 or more during a calendar
year.” 52 U.S.C. § 30109(d)(1)(A)(i). Section 30116 sets the
limit on contributions to a political campaign at $2,000 per
election, adjusted for inflation. For the 2012 election cycle, the
contribution limit was $2,500 per election.
29
2012 payment, Smukler signed a tolling agreement. 12 The
agreement, executed on August 21, 2017 and extended on
September 25, 2017, moved the deadline for charges out to
October 26, 2017. The first indictment was returned before the
expiration of the extended tolling agreement and, citing Dees,
the District Court found all three payments within the statute
of limitations. We agree with that analysis.
In Dees, the defendant was charged with violating 18
U.S.C. § 1029(a)(2), making it a crime to use “unauthorized
access devices”—there credit cards—to “obtain[] anything of
value aggregating $1,000 or more” during “any one-year
12
The August tolling agreement states that Smukler
agrees to toll any applicable statute of limitations about:
charges arising out of a payment from the Bob
Brady for Congress campaign committee on or
about August 23, 2012 to D. Jones & Associates
in the amount of $25,000 and the subsequent use
of that money by D. Jones & Associates[,] from
August 23, 2017 to September 26, 2017.
(App. at 133.)
In paragraph six of the agreement, Smukler
acknowledges that he “understand[s] that by agreeing to toll,
and thus not to assert, the claim of statute of limitations, [he is]
giving up any rights [he] may have under the federal statute of
limitations provisions regarding charges that may result from
the investigation described in this document for which the
limitations period expires on or about August 23, 2017.” (App.
at 134.)
30
period.” 215 F.3d at 379 (quoting 18 U.S.C. § 1029(a)(2)).
Dees used credit cards to make three fraudulent purchases,
only one of which occurred within the limitations period. Id.We held that because the third purchase fell within five years
of the indictment, “the offense as actually charged was
completed on . . . the date of the last purchase” and so “the
statute of limitations started running at that time.” Id. at 380.
“[I]nasmuch as the offense is defined as activity ‘during any
one-year period,’” we explained, “the offense is complete as to
any one-year period when there is or are unauthorized uses of
access devices, and the aggregated value of things obtained
through the use of those access devices within the one-year
period ending on its last day equaled or exceeded $1,000.” Id.The enforcement provision of FECA, 52 U.S.C.
§ 30109, is worded similarly to the statute considered in Dees,
and likewise provides for aggregation during a one-year
period. 13 For that reason, the District Court held that “Dees
13
Compare 52 U.S.C. § 30109(d)(1)(A)(i) (“Any person who
knowingly and willfully commits a violation of any provision
of this Act which involves the making, receiving, or reporting
of any contribution, donation, or expenditure . . . aggregating
$25,000 or more during a calendar year shall be fined under
Title 18, or imprisoned for not more than 5 years, or both[.]”)
with 18 U.S.C. § 1029(a)(2) (“Whoever . . . knowingly and
with intent to defraud traffics in or uses one or more
unauthorized access devices during any one-year period, and
by such conduct obtains anything of value aggregating $1,000
or more during that period . . . shall, if the offense affects
interstate or foreign commerce, be punished . . . .”).
31
governs this case and that ‘inasmuch as the offense is defined
as activity during any one-year period the offense is complete
as to any one-year period’ on the date of the last contribution
identified in the calendar year 2012.” (App. at 25 (quoting
Dees, 215 F.3d at 380).) So “[t]he Government properly
charged that defendant and his co-conspirators caused
payments aggregating at least $25,000 in a calendar year,
between June 2012 and August 2012.” (App. at 25.)
Smukler disagrees and argues that he only agreed to toll
the August 2012 payment, not the two earlier ones. In other
words, he “did not agree to toll the statute as to any charges
‘arising out of’ the totality of payments in the same calendar
year in which the August 2012 payment was made.” (Opening
Br. at 32.) Since each of the three payments would have
independently sufficed to support a felony charge under FECA
as each totaled $25,000 or more, the earlier payments would
not “hav[e] [their] origins in, the third payment.” (Opening Br.
at 32.) This interpretation, he contends, is “the better plain-
language understanding of the agreement.” (Opening Br. at
33.)
We begin with the self-evident: “the language of a
contract . . . matters greatly.” United States v. Goodson, 544
F.3d 529, 535 (3d Cir. 2008). Yet Smukler advocates for an
unnaturally narrow reading of his agreement. First, “arising out
of” is a broad provision. See Fed. Ins. Co. v. Tri-State Ins. Co.,
157 F.3d 800, 804 (10th Cir. 1998) (noting “the general
consensus that the phrase ‘arising out of’ should be given a
broad reading such as ‘originating from’ or ‘growing out of’ or
‘flowing from’ or ‘done in connection with’”) (citing cases);
see also In re Remicade (Direct Purchaser) Antitrust Litig.,
938 F.3d 515, 523 (3d Cir. 2019) (explaining “arising out of . .
. in a contract” is “indicative of an extremely broad agreement”
32
(cleaned up)); In re Prudential Ins. Co. of Am. Sales Practice
Litig. All Agent Actions, 133 F.3d 225, 232 (3d Cir. 1998) (use
of “arising out of” shows broad drafting). Second, the
agreement put Smukler on fair notice of possible charges under
52 U.S.C. § 30109, which includes an aggregating provision
during a calendar year for campaign contribution violations.
Third, Smukler elsewhere agreed that “[n]othing . . . limit[s]
the ability of the United States to bring criminal charges prior
to the expiration of th[e] tolling agreement,” and that he waived
all rights under the applicable statute of limitations “regarding
charges that may result from the investigation described in
th[e] document.” (App. at 138.)
Smukler tries to distinguish Dees, asserting that because
each of the three payments was for “$25,000 or more,” each
independently sufficed to support a felony charge on the
Government’s theory under 52 U.S.C. § 30109(d)(1)(A).
While true, nothing in the statute suggests that the Government
had to indict Smukler on separate charges. Reading the statute
in that way would render “aggregating” surplusage. See
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 174 (2012) (“If possible, every
word . . . is to be given effect[.]”). And no normal reading of
the statute would permit aggregation if one of the payments
had been only $24,999, but not when all were for $25,000 or
more.
For these reasons, while the agreement only references
the August 23, 2012 payment, the potential charges emanating
from that payment are not similarly limited. Whether Smukler
assumed a narrower reading is not relevant, as our role is to
“focus not on intent, but on words.” United States v. Damon,
933 F.3d 269, 273 (3d Cir. 2019). We will therefore affirm this
count of conviction.
33
B. The Jury Instructions at Count X Were Not Plainly
Erroneous
Smukler also claims that the lack of a specific unanimity
instruction on the false statement charges in Counts V and X
violated his Sixth Amendment right to a unanimous verdict.
The parties agree we review for plain error because Smukler
failed to raise this issue at trial. Under Federal Rule of Criminal
Procedure 52(b) “we must decide whether (1) an error
occurred, (2) the error is ‘plain,’ and (3) it ‘affect[s] substantial
rights.’” United States v. Payano, 930 F.3d 186, 192 (3d Cir.
2019) (quoting United States v. Olano, 507 U.S. 725, 732
(1993) (alteration in original)). Meeting all three conditions
allows a court discretion to correct a “particularly egregious”
error, United States v. Frady, 456 U.S. 152, 163 (1982), if the
error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings,” Olano, 507 U.S. at 736(alteration in original) (quoting United States v. Atkinson, 297
U.S. 157, 160 (1936)). Because we have already determined
that Smukler’s conviction at Count V must be vacated, we will
only review Count X.
Under the Sixth Amendment, “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district
shall have been previously ascertained by law.” U.S. Const.
amend. VI. It is “unmistakable” that the Framers and Ratifiers
of our Constitution understood “trial by an impartial jury” to
mean that “[a] jury must reach a unanimous verdict in order to
convict.” Ramos v. Louisiana, 140 S. Ct. 1390, 1395 (2020)
(explaining that juror unanimity stretches back to 14th century
England, where it was “accepted as a vital right protected by
34
the common law”); see also United States v. Yeaman, 194 F.3d
442, 453 (3d Cir. 1999) (“It is well settled that a defendant in
a federal criminal trial has a constitutional right to a unanimous
verdict.”).
The right to a unanimous verdict “includes the right to
have the jury instructed that in order to convict, it must reach
unanimous agreement on each element of the offense charged.”
Gonzalez, 905 F.3d at 183 (quoting Yeaman, 194 F.3d at 453).
Such an instruction is known as the “general unanimity
instruction.” United States v. Beros, 833 F.2d 455, 460 (3d Cir.
1987). “Typically, when an indictment alleges a number of
different factual bases for the defendants’ criminal liability, the
general unanimity instruction ensures that the jury
unanimously agrees on the factual basis for a conviction.”
Gonzalez, 905 F.2d at 183. But when “a statute enumerates
alternative routes for its violation, it may be less clear . . .
whether these are mere means of committing a single offense
(for which unanimity is not required) or whether these are
independent elements of the crime (for which unanimity is
required).” Id. (alteration in original) (quoting Yeaman, 94
F.3d at 453). And so, in some cases, a “general unanimity
instruction” is not sufficient, and “a more specific unanimity
instruction” is necessary. Id. (citing Beros, 833 F.2d at 460).
But “a specific unanimity instruction is the exception to
the ‘routine case,’” United States v. Cusumano, 943 F.2d 305,
312 (3d Cir. 1991), only applicable when “complexity . . . or
other factors, creates the potential that the jury will be
confused,” Beros, 833 F.3d at 460. In most, “even where an
indictment alleges numerous factual bases for criminal
liability,” “a ‘general unanimity instruction will ensure that the
jury is unanimous on the factual basis for a conviction.’”
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Gonzalez, 905 F.3d at 184 (quoting Cusumano, 943 F.2d at
312).
Count X charged Smukler with:
[W]illfully caus[ing] the authorized campaign
committee of a candidate for the United States
House of Representatives to falsely report to the
FEC contributions received by that committee
over $200, to wit causing Candidate C 2014 to
report to the FEC payments from Black and
Blue and InfoVoter as refunds when in fact
those payments were unlawful contributions
routed through those companies aggregating
$25,000 and more in calendar year 2014, and
causing Candidate C 2014 to report
contributions from SMUKLER in the names of
others. 14
(App. at 123.)
Because Smukler did not request a specific unanimity
instruction, the Court charged the jury on general unanimity:
I want to remind you that your verdict, whether
it is guilty or not guilty, must be unanimous. To
find the defendant guilty of an offense, every one
of you must agree that the Government has
overcome the presumption of innocence with
evidence that proves each element of that offense
beyond a reasonable doubt. To find the
14
In violation of 52 U.S.C. §§ 30104(a)(1),
30104(b)(5)(A), 30109(d)(1)(A)(i), and 18 U.S.C. § 2.
36
defendant not guilty, every one of you must
agree that the Government has failed to convince
you beyond a reasonable doubt.
(App. at 1954:9–16.)
This is not error, let alone plain error, as Smukler again
asks us to apply an extraordinary standard to an
unextraordinary case. As we explained, neither FECA, nor the
facts offered by the Government, are so complex as to risk jury
confusion. It is also not plain that the charge depended, as
Smukler contends, on “a composite theory of guilt.” Beros, 833
F.2d at 462. This theory, which we explained in Beros, “applies
where the Government advances different factual theories
concerning the defendant[’s] charged conduct, each of which
could independently satisfy the elements of the crime.”
Gonzalez, 905 F.3d at 184. In Beros, the government
proceeded with a sixteen-count indictment, with two of the
counts “alleg[ing] four separate and distinct theories of
criminal activity” and “enumerat[ing] several acts upon which
a finding of guilt could be predicated.” 833 F.2d at 461.
Concerned by the disjunctive nature of the charging statutes
and the multiple, factually distinct allegations of criminal
conduct, we could “easily imagine” juror disagreement. Id. For
example, four of the jurors might have focused on Beros’s
improper use of a credit card, another four on his unapproved
hotel upgrades, and the final four on his turning a business trip
into a personal vacation. See id. at 461–62. So, we held that
“[w]hen the government chooses to prosecute under an
indictment advancing multiple theories, it must prove beyond
a reasonable doubt at least one of the theories to the satisfaction
of the entire jury.” Id. at 462.
37
Here, however, the Government advances only a single
theory of liability. Count X charges Smukler with multiple
FECA offenses, but at least arguably under a single factual
basis: that Smukler caused the Margolies campaign to make
false reports to the FEC. Those falsities violated FECA’s
prohibition against (1) improperly reporting that the “refunds”
from Black and Blue Media and InfoVoter were, in fact, lawful
contributions; and (2) improperly reporting contributions from
individuals which were, in fact, contributions made by
Smukler.
And even assuming this satisfies Olano’s first and
second prongs—that there was an error, and the error was
plain—Smukler cannot show that the error “affected the
outcome of the district court proceedings.” Payano, 930 F.3d
at 192 (alteration in original) (quoting Olano, 507 U.S. at 734).
At Counts VII and VIII the jury found Smukler guilty of
violating the underlying FECA provisions that Count X
charged him with causing the Margolies campaign to falsely
report. There is overwhelming evidence in the record that
Smukler duped the campaign into assuming the legitimacy of
these contributions. The mere fact that the jury found that
Smukler concealed the true nature of these contributions in
Counts VII and VIII is likely enough to satisfy Count X’s
charge. 15 While Smukler bears the burden on appeal, he
15
For instance, recall that Jones testified that his
contribution to the Margolies campaign depended on Smukler
reimbursing him, which Smukler did by sending Jones a check
from InfoVoter. And Smukler, as head of the campaign,
instructed Margolies’ campaign treasurer that the contributions
made from Black and Blue Media and InfoVoter were, in fact,
“refunds.”
38
provides no showing for how a specific unanimity charge
would “have affected the outcome of the district court
proceedings.” Payano, 930 F.3d at 192 (quoting Olano, 507
U.S. at 734). In short, Smukler has far from satisfied the
exacting standard of plain error review.
V. CONCLUSION
For these reasons, we will vacate the judgment of
conviction at Counts V and VI, and we will affirm all other
counts of Smukler’s conviction.
39