United States v. Smukler

• Decision Date: 31 July 2018
• Docket Number: CRIMINAL ACTION NO. 17-563-02
• Citation: 330 F.Supp.3d 1050
• Parties: UNITED STATES v. Kenneth SMUKLER
• Court: U.S. District Court — Eastern District of Pennsylvania

330 F.Supp.3d 1050

UNITED STATES

v.Kenneth SMUKLER

CRIMINAL ACTION NO. 17-563-02

United States District Court, E.D. Pennsylvania.

Signed July 31, 2018

Filed August 1, 2018

Eric L. Gibson, United States Attorney's Office, Philadelphia, PA, Rebecca Lauren Moses, Jonathan Ian Kravis, U.S. Department of Justice, Washington, DC, for United States.

Alan J. Tauber, Lindy & Tauber, Philadelphia, PA, Brian J. McMonagle, McMonagle, Perri, McHugh & Mischak, Philadelphia, PA, Jon R. Fetterolf, Rachel F. Cotton, Steven N. Herman, Zuckerman Spaeder LLP, Washington, DC, for Kenneth Smukler.

MEMORANDUM

DuBois, District Judge

I. INTRODUCTION

On October 24, 2017, a federal grand jury in the Eastern District of Pennsylvania named defendant Kenneth Smukler and co-defendant Donald "D.A." Jones in a six count Indictment charging violations of the Federal Election Campaign Act ("FECA"). On March 20, 2018, the Government filed a Superseding Indictment charging additional violations of FECA. The Superseding Indictment charges Smukler with: participation in a conspiracy in violation of 18 U.S.C. § 371 (Count I); causing unlawful campaign contributions in violation of 52 U.S.C. §§ 30109(d)(1)(A)(i), 30116(f), and 18 U.S.C. § 2 (Counts II & VII); causing false campaign reports in violation of 52 U.S.C. §§§ 30104(a)(1), 30104(b)(5)(A), 30109(d)(1)(A)(i), and of 18 U.S.C. § 2 (Counts III, IV & X); causing false statements in violation of 18 U.S.C. §§ 2 and 1001(a)(1) (Count V & VI); making contributions in the name of another in violation of 52 U.S.C. §§ 30109(d)(1), 30116(f), 30122, and 18 U.S.C. § 2 (Counts VIII & IX); obstruction of a pending agency proceeding in violation of 18 U.S.C. §§ 2 and 1505 (Count XI).

Presently before the Court are the following Motions: (1) Defendant Kenneth Smukler's Motion to Dismiss Count Two Under the Statute of Limitations; (2) Defendant Kenneth Smukler's Motion to Dismiss Counts I-VII and IX-X of the Superseding Indictment for Failure to Allege "Contributions" Under FECA; (3) Defendant's Motion to Dismiss Counts III, IV, V, X, XI for Failure to Allege that Mr. Smukler Willfully Caused Any False FEC Filings; and (4) Defendant Kenneth Smukler's Motion for a Bill of Particulars. For the reasons that follow, the Motions are denied.

II. BACKGROUND

The Superseding Indictment charges defendant with campaign finance violations in connection with two congressional campaigns: (1) the 2012 congressional primary campaign of United States Representative Robert Brady ("Brady") and (2) the 2014 congressional primary campaign of Marjorie Margolies. With respect to the Brady campaign, the Government charges that defendant and his co-conspirators facilitated unlawful payments totaling $90,000 to induce Jimmie Moore—Brady's primary challenger—to drop out of the primary race. In connection with the Margolies campaign, defendant is charged with facilitating unlawful campaign contributions through two political consulting entities which he owned and disguising those unlawful contributions as refunds of general election contributions. The Court summarized the charges and the facts at length in its Memorandum dated July 13, 2018. It will do so again in this Memorandum only as necessary to explain its rulings.

III. LEGAL STANDARD

The contents of an indictment are governed by Federal Rule of Criminal Procedure 7(c)(1), which instructs that an indictment or information "be a plain, concise, and definite written statement of the essential facts constituting the offense charged." United States v. Huet , 665 F.3d 588, 594 (3d Cir. 2012) (quoting Fed. R. Crim. P. 7(c)(1) ).

Under Third Circuit precedent, an indictment is sufficient "so long as it (1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution." United States v. Kemp , 500 F.3d 257, 280 (3d Cir. 2007) (citations omitted). "[N]o greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution." Id. (internal quotation marks omitted).

A district court may review the sufficiency of an indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B). Huet , 665 F.3d at 595. Such review, however, is limited. "[A] pretrial motion to dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the government's evidence." Id. (internal citations omitted). Accordingly, in evaluating a Rule 12 motion to dismiss, "a district court must accept as true the factual allegations set forth in the indictment" to determine whether "a jury could find that the defendant committed the offense for which he was charged." Id. at 595–96.

IV. DISCUSSION

A. Smukler's Motion to Dismiss Count Two Under the Statute of Limitations

Defendant seeks dismissal of Count Two of the Superseding Indictment on the ground that two of the three contributions identified occurred outside the statute of limitations. The Government argues that, because one of the three alleged payments occurred within the statute of limitations—as extended by two tolling agreements—and each of the three alleged contributions were made within a single calendar year, a single count charging all three contributions is timely. The parties agree that the statute of limitations for a violation of FECA is five years. 52 U.S.C. § 30145.

Count Two charges defendant with "willfully caus[ing] contributions to the Jimmie Moore for Congress campaign in excess of the limits of the Election Act, which aggregated $25,000 and more in calendar year 2012" in violation of 52 U.S.C. §§ 30109(d)(1)(A)(i) & 30116(f) and 18 U.S.C. § 2. Section 30116 sets forth campaign contribution limits and § 30116(f) prohibits a candidate or political committee from "knowingly accept[ing] any contribution or mak[ing] any expenditure" exceeding those limits.¹ Section 30109(d)(1)(A)(i) sets forth the criminal penalties for such a violation and provides that: "[a]ny 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 ... or imprisoned for not more than five years...." 52 U.S.C. § 30109(d)(1)(A)(i).

The Superseding Indictment charges that defendant and his co-conspirators agreed to and did pay $90,000 for use by Moore in paying his campaign debts and that in exchange, Moore dropped out of the primary election. The contributions were paid in three installments, as follows:

(1) On or about June 13, 2012, defendant ... caused VLDS to send check number 6689 in the amount of $40,000 to Carolyn Cavaness with the memo line, ‘Poll’. Superseding Indict., Count I ¶ 16(m).

(2) On or about July 17, 2012, defendant ... caused VLDS to send check number 6688 in the amount of $25,000 to cavaness with the memo line, ‘Poll.’ Id. ¶ 16(s); and

(3) On or about August 30, 2012, D.A. Jones caused D.Jones and Associates to send check number 3327 to CavaSense in the amount of $25,000 with the memo line, ‘Consulting.’ Id. ¶ 16(y).

On August 21, 2017, and September 25, 2017, defendant signed tolling agreements extending the statute of limitations with respect to the third payment in August 2012 from D.Jones and Associates. Defendant asserts that, because the tolling agreement pertained only to the August 2012 payment—which was allegedly caused by D.A. Jones—the statute of limitations bars prosecution for the June 13, 2012, and July 17, 2012, payments, which were allegedly caused by defendant. And defendant argues that because the grand jury could not have indicted him for the third payment made in August, the entirety of Count Two must be dismissed.

The Government counters that all three payments were within the statute of limitations, pursuant to United States v. Dees , 215 F.3d 378 (3d Cir. 2000). In Dees , the Government charged defendant with violation 18 U.S.C. § 1029(a)(2), which makes it a crime to "knowingly and with intent to defraud ... use[ ] ... unauthorized access devices during any one-year period, and by such conduct obtain[ ] anything of value aggregating $1,000 or more during that period." 18 U.S.C. § 1029(a)(2). The Government alleged that Dees made three purchases in violation of the statute, only one of which was made within the statute of limitations. Dees asserted that, because the first two payments—which fell outside the statute of limitations period—constituted offenses in themselves, he could not be prosecuted for those payments in connection with the third payment, which did fall within the statute of limitations period. Dees , 215 F.3d at 379. Instead, he argued that each of the earlier two payments should have been charged in separate indictments. Id.

The Third Circuit reversed the district court's dismissal of the indictment in Dees , explaining that "inasmuch as the offense is defined as activity ‘during any one-year period,’ 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." Dees , 215 F.3d at 380. Based on that ruling, the offense as actually charged in Dees was completed on the date of the last payment and the statute of limitations began running at that time.

Defendant seeks to distinguish Dees on the ground that the criminal statute under which Dees was charged specifically provided for the aggregation of amounts within a one-year period whereas the underlying criminal statute in this case—§ 30116—does not. In this case, the Government relies on § 30109(d...