United States v. Whittemore

• Decision Date: 26 January 2015
• Docket Number: No. 13–10515.,13–10515.
• Citation: 776 F.3d 1074
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. F. Harvey WHITTEMORE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

776 F.3d 1074

UNITED STATES of America, Plaintiff–Appellee

v.F. Harvey WHITTEMORE, Defendant–Appellant.

No. 13–10515.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 6, 2014.

Filed Jan. 26, 2015.

Justin James Bustos, Gordon & Silver, Reno, NV; Brian Warner Hagen, Whittemore Law Firm, Reno, NV; Dominic P. Gentile and Vincent Savarese, III (argued), Gordon & Silver, Las Vegas, NV, for Defendant–Appellant.

Elizabeth Olson White (argued), Appellate Chief and Assistant United States Attorney, Reno, NV; Steven Warren Myhre, First Assistant United States Attorney, Las Vegas, NV, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Nevada, Larry R. Hicks, District Judge, Presiding. D.C. No. 3:12–cr–00058–LRH–WGC–1.

Before: KIM McLANE WARDLAW, WILLIAM A. FLETCHER, and PAUL J. WATFORD, Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

In February 2007, F. Harvey Whittemore agreed to raise $150,000 for Senator Harry Reid's reelection campaign by March 31. A few days before the deadline, Whittemore distributed a total of $145,000, in increments of $5,000 per person, to some of his relatives and to employees of a company of which he was chairman, requesting that the recipients make contributions to Senator Reid's campaign. Each recipient made a contribution of $4,600, the maximum allowed under federal law. A jury convicted Whittemore of making excessive campaign contributions in violation of 2 U.S.C. §§ 441a(a)(1) and 437g(d)(1)(A)(i), making contributions in the name of another in violation of 2 U.S.C. §§ 441f and 437g(d)(1)(A)(i), and making a false statement to a federal agency in violation of 18 U.S.C. §§ 1001(a)(2) and 2. (The relevant provisions of Title 2 of the U.S.Code have since been moved to Title 52 and renumbered.) Whittemore appeals, arguing that (1) the district court impermissibly failed to instruct the jury on the theory of his defense; (2) the individual contribution limits in the Federal Election Campaign Act (“FECA”) and the Bipartisan Campaign Reform Act violate the First Amendment; (3) the district court made two erroneous evidentiary rulings; and (4) the conviction was based on insufficient evidence.

We affirm.

I. Background

F. Harvey Whittemore is a prominent attorney, developer, and lobbyist who has long been active in Nevada politics and political fundraising. In early 2007, Whittemore was serving as Chairman of Wingfield Nevada Group, a holding company with significant interests in golf courses, land development, oil and gas properties, and dairy operations.

Whittemore had been a past supporter of Senator Harry Reid. In February 2007, after a meeting with Senator Reid, Whittemore promised to raise $150,000 for Senator Reid's 2010 reelection campaign before the upcoming March 31 campaign finance filing deadline. When the campaign had not received any funds from Whittemore by late March, Senator Reid's fundraiser twice followed up with Whittemore.

On March 27, 2007, the day of the second follow-up call, Whittemore transferred a total of $145,000 to seventeen relatives and employees through wire transfers and checks. Those who were single received $5,000, while couples who were married or engaged received $10,000. Each recipient made a campaign contribution to Senator Reid's campaign of the statutory maximum contribution of $4,600, most within one day of receiving the money. Many of the recipients testified at trial that they would not or could not have made such large contributions absent the transfers from Whittemore. The recipients generally testified that Whittemore had characterized the funds as “bonuses” or “gifts” and that he simultaneously encouraged them to make contributions to Senator Reid's campaign, sometimes explicitly stating that the funds were intended to cover the cost of the contribution.

Whittemore's assistant, Roxanne Doyle, testified that on March 28 she sent contribution checks by FedEx to Jake Perry, Senator Reid's fundraiser, with a cover memo and a spreadsheet of donor information. The cover memo indicated that three of the checks listed on the spreadsheet had been sent to the campaign separately. The spreadsheet identified thirty-three donors, thirteen of whom were employees of Wingfield Nevada Group, including Whittemore. Whittemore was identified as the company's chairman. Two other donors were identified as employees of Red Hawk, a Wingfield subsidiary. Perry testified that the campaign received all of the checks except for one of the three that had been sent separately.

On April 13, two days before Senator Reid's campaign was to report its quarterly fundraising information to the Federal Election Commission, Whittemore sent Perry an email with the subject heading “contribution list,” along with a new spreadsheet that listed the same thirty-three donors. On this spreadsheet, however, only four of the donors were listed as Wingfield employees. Several were now identified as employees of Wingfield subsidiaries whose names did not signal any relationship to Wingfield. Roxanne Doyle had previously been identified as “Executive Assistant, Wingfield Nevada Group.” She was now identified as an employee of Harvey Whittemore Attorney at Law. Christina Mamer had been identified as “VP of Human Resources, Wingfield Nevada Group.” She was now identified as an employee of Whittemore–Seeno Company; the prosecution introduced evidence that there is no company registered by that name in Nevada. Whittemore himself was now identified as “Partner, Lionel Sawyer & Collins.”

Following a two-week trial, a jury convicted Whittemore of making excessive campaign contributions in violation of 2 U.S.C. §§ 441a(a)(1) and 437g(d)(1)(A)(i), making contributions in the name of another in violation of 2 U.S.C. §§ 441f and 437g(d)(1)(A)(i), and making a false statement to a federal agency in violation of 18 U.S.C. §§ 1001(a)(2) and 2. The jury could not reach a verdict on a second charge of making a false statement to a federal agency. The district court declared a mistrial on that count and granted the government's motion to dismiss without prejudice. The court granted Whittemore a downward variance from the guideline sentencing range of 41 to 51 months, sentencing him to 24 months in prison.

II. Standard of Review

We review de novo whether jury instructions properly state the elements of the charged offense and adequately cover the defense's theory of the case. United States v. Romm, 455 F.3d 990, 1002 (9th Cir.2006) ; United States v. Stapleton, 293 F.3d 1111, 1114 (9th Cir.2002). We also review constitutional claims de novo. United States v. Chovan, 735 F.3d 1127, 1131 (9th Cir.2013).

We review evidentiary rulings for abuse of discretion and any underlying factual determinations for clear error. United States v. Lukashov, 694 F.3d 1107, 1114 (9th Cir.2012). “Evidentiary rulings will be reversed for abuse of discretion only if such nonconstitutional error more likely than not affected the verdict.” United States v. Corona, 34 F.3d 876, 882 (9th Cir.1994).

“Where a defendant moves for acquittal at the close of the government's evidence, we review de novo whether sufficient evidence exists to support a guilty verdict.” United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir.2005). A conviction is supported by sufficient evidence if, “viewing the evidence in the light most favorable to the government, a rational trier of fact could conclude that the evidence was adequate to prove guilt beyond a reasonable doubt.” United States v. Barbosa, 906 F.2d 1366, 1368 (9th Cir.1990).

III. Discussion

Whittemore makes a number of arguments challenging his conviction. We address them in turn.

A. Jury Instructions

Whittemore first argues that the district court erred in refusing to instruct the jury that an unconditional gift of funds cannot violate § 441f if the funds have become the property of the donors under Nevada law.

“A defendant is entitled to have the judge instruct the jury on his theory of defense, provided that it is supported by law and has some foundation in the evidence.” United States v. Mason, 902 F.2d 1434, 1438 (9th Cir.1990), overruled on other grounds by Dixon v. United States, 548 U.S. 1, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006), as recognized by United States v. Doe, 705 F.3d 1134 (9th Cir.2013). “[B]ut it is not reversible error to reject a defendant's proposed instruction ... if other instructions, in their entirety, adequately cover that defense theory.” Id. In United States v. Thomas, 612 F.3d 1107, 1120 (9th Cir.2010), we articulated a three-part test, requiring the defendant to show (1) that his theory has some foundation in evidence; (2) that it is supported by law; and (3) that the given instructions did not adequately encompass his theory.

Whittemore's theory that unconditional gifts under Nevada law cannot be conduit contributions in violation of federal law is not supported by law. Furthermore, to the extent Whittemore's theory is that the unconditional nature of the gifts prevented him from forming the necessary intent, the instructions given by the court adequately encompassed his theory.

1. Unconditional Gifts

Section 441a imposes limits on individual campaign contributions made directly to candidates. See 52 U.S.C. § 30116(a)(1)(A) (formerly 2 U.S.C. § 441a(a)(1)(A) ). In 2007, the inflation-adjusted limit for both primary and general election campaign contributions was $2,300, for a total base limit of $4,600 per person per candidate during a single election cycle. See id. § 30116(c)(1) (formerly 2 U.S.C. § 441a(c)(1) ); 72 Fed.Reg. 5294, 5295 (Feb. 5, 2007). The statute defines a “contribution” as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i) (formerly 2 U.S.C. § 431(8)(A)(i) ). The limit includes “all contributions made by a person, either directly or indirectly, on behalf of a particular...