Petition for Writ of Certiorari — Stephen E. Stockman, Petitioner v. United States

United States Court of Appeals for the

Fifth Circuit

Filed Jan. 10, 2020

No. 18-20780

UNITED STATES OF AMERICA,

PLAINTIFF - APPELLEE,

v.

STEPHEN E. STOCKMAN,

DEFENDANT - APPELLANT.

Appeal from the United States District Court for the

Southern District of Texas

Before: JOLLY, GRAVES, and HIGGINSON, Circuit

Judges.

E. GRADY JOLLY, Circuit Judge:

Stephen E. Stockman served four years in

Congress and now faces ten years in prison. He seeks

to avoid this career detour. He must admit that a

jury convicted him on twenty-three felony counts after

the government accused him, inter alia, of defrauding

philanthropists and using their money to finance his

personal life and political career. Acknowledging the

convictions, Stockman argues, nevertheless, that

prison should not be the next item on his résumé

because the convictions were tainted by improper jury

instructions and unsupported by the evidence. We

affirm.

I.

Stockman served two nonconsecutive terms in

the United States House of Representatives, first

from 1995 to 1997 and then from 2013 to 2015. During

his first term, Stockman began working with an

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organization called the “Leadership Institute,” where

he became acquainted with Jason Posey and Thomas

Dodd, two members of its staff. His relationships

with these two men would grow and then wither.

Stockman employed Posey and Dodd as campaign

staffers,

congressional

aides,

and

business

consultants. Their most recent roles were as

witnesses against Stockman.

Posey and Dodd worked with Stockman to

raise money for various “nonprofit” entities between

2010 and 2014, the period in which Stockman is

alleged to have orchestrated a criminal scheme to

obtain charitable donations under false pretenses

and to then enrich himself with the proceeds.

Though initially named as codefendants, Posey and

Dodd abandoned Stockman, pleaded guilty, and

testified against him. Their testimony helped reveal

the details of the scheme, which unfolded in four

parts, targeted two donors, and ultimately netted

over a million dollars for Stockman and his aides.

The 2010 Rothschild Donations

Stockman’s scheme began in May 2010, when

Stockman and Dodd started soliciting Stanford Z.

Rothschild, Jr., an elderly donor acting through his

foundation. Over the next five months, Stockman

and Dodd managed to persuade Rothschild to donate

$285,000 to the Ross Center, a Section 501(c)(3)1

nonprofit organization under Stockman’s control.

Rothschild was told that his money would fund

“voter education material” for Jewish voters in

Florida. Dodd testified that “voter education

material[s]” are print publications that “educate

This case involves so-called “501(c)(3)” and “501(c)(4)”

organizations. Those designations refer to provisions of the

Internal Revenue Code that give tax-exempt status to

qualifying nonprofit entities. See 26 U.S.C. §§ 501(c)(3)–(4).

1

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voters in the general public about public policy

positions and public policy issues.” Specifically,

Rothschild was pitched on a book about radical Islam

that would be mailed to voters in the lead-up to the

2010 midterm elections.

The deal was finalized only after Stockman

assured Rothschild that his money “was to be spent

for public policy [and] voter education that was 100

percent compliant with 501(c)(3) rules.” With this

reference to the “501(c)(3) rules,” Stockman appears

to have promised that he would spend Rothschild’s

money primarily (if not exclusively) in furtherance of

the educational goals laid out in the pitch. See 26

U.S.C. § 501(c)(3) (tax-exempt organizations must be

operated “exclusively for . . . charitable . . . or

educational purposes”).

But this promise soon vanished. Instead of

“voter education materials,” Stockman spent the

2010 Rothschild funds charitably on himself,

educating himself at Disneyland and other

amusement parks, at spas, and riding in hot air

balloons. Stockman’s charity to himself was

generous; it further included paying his business

expenses, including an abortive venture in South

Sudan on which Stockman spent about $13,000 of

the 2010 Rothschild funds. Stockman made the trip

to South Sudan hoping to win a lucrative lobbying

contract with a “performance bonus” that would allow

him to take a percentage of any foreign aid

appropriated by Congress.

Stockman failed to mail any “voter education

material” as promised.

The 2011–2012 Rothschild Donations

Stockman and Dodd were not finished with

Rothschild. In 2011, Stockman decided to run for a

second term in Congress. This time, rather than pitch

a “voter education” project aimed at indirectly

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influencing elections, Stockman and Dodd requested

a loan for Stockman’s campaign. Rothschild refused.

Instead, he agreed to give in the same manner as

before, i.e., to “mak[e] donations from his foundation

. . . to be used for voter education in accordance

with the 501(c)(3) rules.” Stockman again promised

to honor Rothschild’s wishes, so Rothschild made

another series of large donations, this time totaling

$165,000, to the Ross Center and Life Without

Limits (another Stockman-controlled nonprofit

entity).

As before, Stockman repurposed the funds. He

spent thousands on personal goods, including airline

tickets, fast food, and gasoline. He also diverted 80%

of a $100,000 donation to his congressional campaign

account. It was later reported to the Federal Election

Commission (FEC) that this deposit was a personal

loan from Stockman to his own campaign.

Stockman agrees that most of the 2011–2012

Rothschild funds were, in the words of his brief,

“transferred to other accounts controlled by

Stockman, including the account for his campaign

committee.” Stockman nevertheless reported in a

letter to Rothschild that the funds had “helped [Life

Without Limits] educate many people last year in

traditional American values.” The nature of those

“values” was not described.

The 2013 Uihlein Donation

In January 2013, Stockman, now a member of

Congress, shifted his attention to Richard Uihlein, a

Wisconsin businessman whose foundation has

donated millions of dollars to nonprofit organizations

that share his conservative values. Stockman and

Dodd pitched Uihlein on “Freedom House,” a

prospective residential facility in Washington, D.C.

that would house interns and provide a home base for

a non-existent nonprofit called the “Congressional

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Freedom Foundation.” Uihlein agreed to endow the

project with $350,000 in seed money. The seed was

not planted as promised, and the project died in

silence. But the seed money survived to promote a

new development in Stockman’s political career: he

had decided to run for the United States Senate in

2014.

Thus, as with the Rothschild donations,

Stockman used the 2013 Uihlein funds to meet his

personal and (especially) his political needs. For

example, Stockman spent over $40,000 on a plan to

surveil a conservative Texas politician whom

Stockman believed to be a likely opponent in a future

primary. Stockman also gave thousands of dollars to

his cohorts, Dodd and Posey, so that they, in turn,

could “donate” the money to Stockman’s Senate

campaign; the donations were falsely attributed to

Dodd’s mother and Posey’s father in FEC filings. In

sum, the 2013 Uihlein donation was spent in a long

sequence of varying expenditures, including $5,000

to pay the rent on Stockman’s campaign office, more

than $30,000 to pay off Dodd’s credit card debt, and

over $20,000 to patronize a publishing business

owned by Stockman’s brother.

Posey testified that no money was actually

spent on the project pitched to Uihlein. Even

Stockman agrees that no property was ever acquired

for such a project. Nonetheless, Stockman’s team

reported to Uihlein that his generosity had allowed

Life Without Limits to support Freedom House. The

2014 letter that makes this claim also goes on to

advise Uihlein that his “continued support is crucial

to our mission.”

The 2014 Uihlein Donation

By early 2014, Stockman was in the midst of

his primary challenge to incumbent United States

Senator John Cornyn. Stockman met with Kurt

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Wagner, the president of a direct mail company, and

the two men discussed Stockman’s plan to mail

Texas voters a faux newspaper called The

Conservative News on the eve of the Republican

primary. The Conservative News accuses Senator

Cornyn of “falsifying ethics reports to hide income,”

“lying to voters,” and filing “false donor reports at

least 121 times.” By contrast, The Conservative News

takes care to highlight Stockman’s policy positions

and legislative actions with bold headlines like

“Stockman Kills Cornyn-Backed Senate Amnesty

Bill” and “Stockman’s Sanctity of Life Act Overturns

Roe v. Wade.”

To finance this direct mail campaign,

Stockman instructed Wagner to seek a new donation

from Uihlein. Posey also called Uihlein to help

induce a donation. Stockman dictated some of the

contents of a solicitation letter but told Wagner that

the letter would “need[] to come from somebody else,

not [Stockman] directly.” The letter, which purported

to seek financing for an independent expenditure by

the “Center for the American Future,” induced

Uihlein to give $450,571.65. Uihlein testified that he

would not have donated the money if he had known

of Stockman’s involvement. Posey testified that the

Center for the American Future was under

Stockman’s control.

The 2014 Uihlein funds were used to print and

distribute hundreds of thousands of copies of The

Conservative News. Stockman called off the direct

mail campaign shortly before the primary, at which

point only $214,718.51 remained of Uihlein’s 2014

donation. At Stockman’s direction, Posey proceeded

to use these remaining funds to pay bills related to

Stockman’s Senate campaigns, including both his

Texas campaign and a prospective campaign in

Alaska. Posey also testified that Stockman

instructed him to flee to Egypt with some of the

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remaining funds, using them to pay for flights and

other travel expenses.2

II.

In March 2017, Stockman was indicted on four

counts of mail fraud, four counts of wire fraud, two

counts of making false statements in FEC filings,

eleven counts of money laundering, one count of

conspiracy to make conduit campaign contributions

and false statements, one count of causing an

excessive campaign contribution, and one count of

filing a false tax return.

The district court denied Stockman’s motions

to dismiss the indictment and to strike surplusage.

The case proceeded to a three-week jury trial, after

which Stockman was convicted on all counts but one.3

The district court denied Stockman’s motions for

judgment of acquittal, and later sentenced Stockman

to ten years in prison and three years of supervised

release. Stockman was also ordered to pay

restitution in the amount of $1,014,718.51. He timely

has appealed.

III.

Stockman now argues that the district court

erred by issuing problematic jury instructions, by

denying Stockman’s motions for judgment of

acquittal under Federal Rule of Criminal Procedure

29, and by denying his motion to dismiss the

indictment. With respect to the jury instructions,

Stockman contends that the district court erred by

defining 501(c)(3) and 501(c)(4) organizations in the

By this time, Stockman had wind that he was the target

of an FBI investigation. He thought that, by sending Posey to

Cairo with the 2014 Uihlein funds, he could evade a potential

asset freeze or forfeiture.

3

Stockman was acquitted on Count 6, a wire fraud

charge related to the Rothschild donations.

2

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charge and by failing to instruct the jury on

Stockman’s “good faith” defense to the tax and

campaign finance counts. With respect to the denial

of his Rule 29 motions, Stockman argues that the

government failed to prove the existence of a

fraudulent “scheme” devised with the requisite

intent to defraud. Stockman also makes three

arguments challenging his conviction for causing an

excessive campaign contribution under Count 12 of

the indictment, all of which essentially assert that

the district court erred by failing to recognize that

“express advocacy” is a necessary element of the

offense. In total, Stockman’s brief presents six

alleged errors infecting one or more of his

convictions.4 We find that each claim lacks merit.

A.

Stockman argues that his convictions for mail

and wire fraud cannot stand because the district

court

issued

“improper

and

unnecessary”

instructions that confused the jury. Specifically,

Stockman draws our attention to a section of the jury

charge that defines 501(c)(3) and 501(c)(4)

organizations in the following manner:

Arguably, Stockman has also preserved a complaint

about the district court’s disjunctive Count 12 jury instructions.

Stockman appears to argue that the district court erred by

allowing the jury to convict Stockman for inducing Uihlein’s

2014 expenditure on advertisements “advocating Mr.

Stockman’s election or attacking Mr. Stockman’s opponent”

because the indictment alleged a conjunction. But the

government does not heighten its burden of proof by pleading

criminal acts conjunctively. See United States v. Holley, 831

F.3d 322, 328 n.14 (5th Cir. 2016). Here, the government was

not required to prove that Uihlein’s money was spent on

advertising “advocating for Stockman’s election and attacking

Stockman’s opponent.” We thus decline to find error in the

district court’s disjunctive language.

4

8a

A 501(c)(3) organization is a nonprofit

corporation, fund, or foundation organized

and operated exclusively for religious,

charitable,

scientific,

or

educational

purposes.

Section 501(c)(3) organizations are generally

exempt from federal taxation, and donations

to [] these entities may be tax deductible. If

an organization is classified as a 501(c)(3)

organization, none of its net earnings may

benefit any private shareholder or individual.

A Section 501(c)(3) organization may not

participate or intervene in any political

campaign on behalf of or [in] opposition to

any candidate for public office.

A Section 501(c)(4) organization is a

nonprofit

organization

operated

exclusively for the promotion of social

welfare.

Section 501(c)(4) organizations are

also generally exempt from federal

taxation.

A

Section

501(c)(4)

organization may compensate employees

for work actually performed, but the net

earnings

of

a

Section

501(c)(4)

organization

must

be

devoted

exclusively to charitable, educational, or

recreational purposes. The net earnings

of a Section 501(c)(4) organization may

not benefit any private shareholder or

individual.

At oral argument, defense counsel represented

that Stockman principally objects that this language

of

the

instructions

was

“irrelevant”

and

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“unnecessary.” Stockman concedes, however, that no

contemporaneous objection was made at trial;

instead, he now argues that the district court should

have excluded the 501(c)(3) and 501(c)(4) definitions

from the charge sua sponte.

Given Stockman’s failure to object at trial, our

review is for plain error. United States v. Saldana,

427 F.3d 298, 303–04 (5th Cir. 2005). Stockman must

demonstrate “(1) that an error occurred; (2) that the

error was plain, which means clear or obvious; (3)

[that] the plain error [would] affect [his] substantial

rights; and (4) [that] not correcting the error would

seriously affect the fairness, integrity, or public

reputation of judicial proceedings.” Id. at 304

(quotation omitted).

We are not convinced that the district court

erred

by

defining

501(c)(3)

and

501(c)(4)

organizations in the charge, but, in any event, no

such error was sufficiently “clear or obvious” to

survive plain error review. Many of the witnesses

discussed 501(c)(3) and 501(c)(4) organizations in

their testimony, and some of that testimony even

went directly to the elements of mail and wire fraud.

Stockman has not cited a truly analogous case, and

we are not aware of one. We have said that an “error

cannot be plain where there is no controlling

authority on point and where the most closely

analogous precedent leads to conflicting results.”

United States v. Gomez, 706 F. App’x 172, 177 (5th

Cir. 2017) (quoting United States v. De La Fuente,

353 F.3d 766, 769 (9th Cir. 2003)). Similarly, when

any analogy to existing authority would be strained,

the district court’s actions cannot amount to plain

error.

Apart from his objection that the 501(c)(3) and

501(c)(4) definitions were “unnecessary,” Stockman

also argues that the definitions, though undisputedly

drawn from the text of the Internal Revenue Code,

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misled the jury by framing the obligations of

501(c)(3) and 501(c)(4) organizations in absolute

terms. See, e.g., St. David’s Health Care Sys. v.

United States, 349 F.3d 232, 235 (5th Cir. 2003)

(suggesting that tax-exempt organizations must be

operated primarily, rather than exclusively, for an

exempt purpose). But, again, we cannot agree that

the district court’s statutory instructions merit

reversal under the plain error standard. An

instruction that mirrors relevant statutory text “will

almost always convey the statute’s requirements,”

United States v. Lebowitz, 676 F.3d 1000, 1014 (11th

Cir. 2012), and Stockman has not identified any

authority rendering it “clear or obvious” that a

district court’s jury instructions must go beyond the

language of the statute in this context.

B.

Stockman next seeks to reverse his conviction

for causing an excessive campaign contribution in

the form of a coordinated expenditure, an offense

covered by Count 12 of the indictment. Count 12

alleges that Stockman, acting through various

agents, induced Uihlein to spend over $450,000 on

The Conservative News, a political communication

promoting the Stockman campaign. The government

argues that, because Stockman was involved in

requesting and spending the money for this project,

Uihlein’s $450,000 payment was a “coordinated

expenditure” under the Federal Election Campaign

Act, 52 U.S.C. § 30101 et seq. (FECA).5

FECA treats “coordinated” expenditures like “campaign

contributions,” placing an upper limit on the amount of money

that donors may spend on them. The government’s position is

that Stockman, having willfully caused Uihlein to spend more

than $25,000 on a coordinated communication, is subject to the

especially severe criminal penalties applicable to those who

make campaign contributions in excess of $25,000. See 52

5

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Stockman does not deny that, if the Uihlein

donation were an “expenditure,” it would be a

“coordinated” expenditure of over $450,000, the

equivalent of a campaign contribution well beyond

statutory limits. Indeed, he could not argue

otherwise: the evidence shows that Stockman at the

very least “cooperat[ed]” with Uihlein and Wagner’s

distribution of The Conservative News. See 52 U.S.C.

§ 30116(a)(7)(B)(i) (coordinated expenditures are

those made in “cooperation, consultation, or concert

with” a candidate or his campaign committee). For

example, Wagner testified that mailing The

Conservative News was Stockman’s idea, that

Stockman supervised him once distribution was

underway, and that Stockman dictated some of the

letter that secured funding from Uihlein.

Instead, Stockman’s appellate challenges to

the conviction turn on the word “expenditure.”

Stockman argues that, in Buckley v. Valeo, 424 U.S.

1 (1976), the “Supreme Court cabined FECA’s

definition of ‘expenditure’ to encompass only ‘funds

used for communications that expressly advocate for

the election or defeat of a clearly identified

candidate.’” Such “express advocacy” entails the use

of “words [like] ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your

ballot for,’ ‘Smith for Congress,’ ‘vote against,’

‘defeat,’ [and] ‘reject.’” Buckley, 424 U.S. at 44 &

n.52. Stockman maintains that to effect a regulated

“expenditure,” donors must spend their money on

communications containing these “magic words.” It is

U.S.C. §§ 30116(a)(1)(A) (establishing upper limit on campaign

contributions), 30109(d)(1)(A)(i) (authorizing extra punishment

for campaign contributions in excess of $25,000),

30116(a)(7)(B)(i) (equating coordinated expenditures with

campaign contributions); 18 U.S.C. § 2(b) (authorizing

punishment “as a principal” for those who “willfully cause[] an

act to be done which if directly performed by [them] or [others]

would be an offense”).

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clear and uncontested that The Conservative News

does not contain direct instructions to “vote for” or

“defeat” any candidate. It would follow, Stockman

argues, that Uihlein did not effect an “expenditure”

when he funded The Conservative News.

But the Supreme Court rejected this

reading of FECA in McConnell v. FEC, 540 U.S.

93 (2003), overruled on other grounds by Citizens

United v. FEC, 558 U.S. 310 (2010)). In

McConnell, the Supreme Court considered

precisely the statutory language at issue here,

namely the rule (now codified at 52 U.S.C. §

30116(a)(7)(B)(i)) that “expenditures . . . in

cooperation, consultation, or concert with” a

candidate are to be considered the equivalent of

campaign contributions and restricted accordingly.

See McConnell, 540 U.S. at 202. The McConnell

Court explained that a post-Buckley statutory

enactment had “clarifie[d] the scope” of this

language, “pre-empt[ing]” a possible claim that

“coordinated expenditures for communications that

avoid express advocacy cannot be counted as

contributions.” 540 U.S. at 202. In other words, the

Court held that the presence of express advocacy is

not a prerequisite of the “settled” rule that when

expenditures are “controlled by or coordinated with

the candidate and his campaign[,] [they] may be

treated as indirect contributions subject to FECA’s . .

. amount limitations.” Id. at 219 (cleaned up).

Stockman seeks to distinguish McConnell on

the ground that “McConnell held . . . the express

advocacy requirement for expenditures . . . preempted

only with respect to . . . narrowly defined

‘electioneering communication[s].’”6 Not so. The

An “electioneering communication” is “any broadcast,

cable, or satellite communication that refers to a clearly

identified candidate for federal office and is made within 30

6

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relevant portion of McConnell deals separately with

two distinct subsections of FECA, one pertaining to

electioneering communications and the other to

expenditures “more generally.” 540 U.S. at 202. The

latter subsection, not the former, was the focus of the

Court’s “preemption” comment. Id. We reject

Stockman’s construction of the statute.7

C.

We next consider Stockman’s argument that

his tax and campaign finance convictions under

Counts 10, 11, 12, and 28 of the indictment were

tainted by the district court’s refusal to instruct on

“good faith.” Stockman points to evidence that he

relied on an accountant who “wrongly advised him

that having aides contribute money to his

congressional campaign in the name of their parents

was permissible.” He also points to evidence that

Stockman and Posey intentionally omitted words of

express advocacy from The Conservative News in

days of a primary or 60 days of a general election.” Citizens

United, 558 U.S. at 321 (cleaned up). The McConnell decision is

largely, but not exclusively, concerned with Congress’s

regulation of these communications. See 540 U.S. at 189–02.

7

Stockman also attempts to escape McConnell by

invoking Center for Individual Freedom v. Carmouche, 449 F.3d

655 (5th Cir. 2006), and Chamber of Commerce of the United

States v. Moore, 288 F.3d 187 (5th Cir. 2002). But neither case

analyzed whether Buckley’s limiting construction should apply

to coordinated expenditures. Carmouche interpreted a

Louisiana statue that “link[ed] disclosure requirements for

expenditures made by independent individuals” to language

that the Supreme Court narrowed in Buckley. Carmouche, 449

F.3d at 664 (emphasis added). Moore found that the relevance

of express advocacy was clear because the Mississippi statute

under scrutiny had “essentially adopted the language” of the

Buckley limiting construction. Moore, 288 F.3d at 196. These

cases are distinguishable and neither one casts doubt on the

conclusions we draw from McConnell.

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order to comply with FECA. He asserts that “[i]n this

context and where willfulness is required, a good

faith instruction should have been given.”

Again, we disagree. Although the parties

dispute the standard of review applicable to the

district court’s refusal to instruct on good faith,

decisions of this court and the Supreme Court show

that the refusal was not erroneous, whether

reviewed de novo or for plain error. See United States

v. Pomponio, 429 U.S. 10, 11–12 (1976); United

States v. Simkanin, 420 F.3d 397, 409–11 (5th Cir.

2005). Stockman argues that a good faith instruction

should have been issued because the tax and

campaign finance offenses in question all require a

showing of “willfulness.”

But it is precisely that requirement that

renders any such instruction unnecessary. The

Supreme Court held in Pomponio that an additional

good faith instruction is not required when the

charge already requires proof of “willfulness,”

properly cabined to cover only “voluntary, intentional

violation[s] of . . . known legal dut[ies].” 429 U.S. at

12 (quotation omitted). In so holding, the Court gave

its approval to a charge that did not instruct on good

faith but did instruct on the need for proof of a

“willful” act, meaning an act “done voluntarily and

intentionally and with the specific intent to do

something which the law forbids, that is to say with

[the] bad purpose either to disobey or disregard the

law.” Id. at 11–12 (quotation omitted). Drawing from

Pomponio, we held in Simkanin that a “specific

instruction” on good faith is not required when the

concept is sufficiently subsumed by a general

instruction on “willfulness.” 420 F.3d at 409–11.

Simkanin, like Pomponio, approved of instructions

alerting the jury to the fact that a “willful” act is done

“voluntarily and deliberately,” with the intention of

“violat[ing] a known legal duty.” Id. at 409–10.

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Here, the district court’s instructions mirrored

those in Pomponio and Simkanin. With respect to

Counts 10, 11, and 12, the district court instructed

the jury that to act “willfully,” the defendant must

act “voluntarily and purposely, with the specific

intent to do something the law forbids, that is, with

the bad purpose either to disobey or disregard the

law.” With respect to Count 28, the district court

instructed the jury that it could not convict unless it

found that Stockman acted “with intent to violate a

known legal duty.” We find no merit in Stockman’s

“good faith” argument.

D.

Finally, we address Stockman’s challenge to

the evidence supporting his convictions for mail

fraud, wire fraud, and money laundering.8 Stockman

argues that the district court erred when it denied his

motions for judgment of acquittal under Rule 29,

contending that the government failed to prove a

fraudulent “scheme” that Stockman devised with the

necessary intent to defraud. See 18 U.S.C. §§ 1341,

1343. We review the denial of a Rule 29 motion de

novo, asking whether “any rational trier of fact could

have found the essential elements of the crime[s]

beyond a reasonable doubt.” United States v. Xu, 599

F.3d 452, 453 (5th Cir. 2010) (quotations omitted).

The elements of mail fraud are “(1) a scheme

to defraud; (2) use of the mails to execute the

scheme; and (3) the specific intent to defraud.”

As to the money laundering convictions, Stockman

argues only that the government cannot meet its burden

to prove a predicate offense if the fraud convictions lack

evidentiary support. See 18 U.S.C. §§ 1956–57. Because

we reject Stockman’s challenge to the fraud convictions,

we necessarily reject his challenge to the money

laundering convictions as well.

8

16a

United States v. Simpson, 741 F.3d 539, 547–48 (5th

Cir. 2014) (quotation omitted). The elements of wire

fraud are “(1) a scheme to defraud; (2) the use of, or

causing the use of, wire communications in

furtherance of the scheme; and (3) a specific intent to

defraud.” United States v. Harris, 821 F.3d 589, 598

(5th Cir. 2016). In evaluating its sufficiency, we view

the evidence in the light most favorable to the

government. United States v. Rodgers, 624 F.2d

1303, 1306 (5th Cir. 1980). Stockman challenges the

evidence supporting his convictions with respect to

both the “scheme” and “intent” elements of mail and

wire fraud.

1.

Challenging the denial of his Rule 29 motions,

Stockman argues that the government’s evidence

does not establish a fraudulent “scheme.” His

reasoning is somewhat tortuous. Stockman argues

that, although purporting to allege a single scheme,

the indictment actually alleges “no fewer than four

separate ‘schemes.’” He further asserts that at least

one of these four separate schemes, the 2014 Uihlein

“scheme,” is not supported by sufficient evidence

because the government failed to prove that in the

2014 scheme Uihlein was deprived of money or

property. Then, expressly reverting to a singlescheme argument, he contends that, because the jury

returned a general verdict without specifying which

“scheme within a scheme” it was relying on to satisfy

the “scheme” element of mail and wire fraud, all

seven mail and wire fraud convictions must be set

aside for failure to prove a scheme. See Yates v.

United States, 354 U.S. 298, 311 (1957) (“[A] verdict

[must] be set aside in cases where the verdict is

supportable on one ground, but not on another,

and it is impossible to tell which ground the jury

selected.”), overruled on other grounds by Burks

17a

v. United States, 437 U.S. 1 (1978).

Stockman’s arguments are confected on a

foundation of sand. The evidence shows that there

was only one scheme, a scheme to separate wealthy

donors from their money and to spend that money at

Stockman’s pleasure and direction. Furthermore,

there is no merit in Stockman’s argument that the

2014 Uihlein solicitations did not threaten to deprive

Uihlein of money or property. Each donation from

each donor, Uihlein included, was given under the

false pretense that the donor’s money would be used

for specific purposes, including “voter education” and

independent political advocacy. The money was not

used for those purposes. Instead, it was, at all times,

under Stockman’s control. He used it to finance his

political career and sustain his self-indulgent

lifestyle. It is thus clear that all of Stockman’s

solicitations were designed to effectuate a traditional

“money or property” fraud.

In short, we hold that there was no failure of

proof regarding the “scheme” element of mail and

wire fraud. On the contrary, viewing the evidence in

the light most favorable to the conviction, we find

ample support for the government’s position that

Stockman orchestrated a single scheme to appeal to

the charity of politically-interested donors for

fraudulent purposes.

2.

Stockman further challenges the denial of his

Rule 29 motions on the ground that the government

produced insufficient evidence of Stockman’s

fraudulent intent. In this context, he argues that the

government’s evidence does not suggest a

“contemporaneous” intent to defraud because

evidence of Stockman’s illicit spending cannot

establish bad faith simultaneous with the solicitation

and receipt of donor funds. From this premise,

18a

Stockman concludes that the government’s case is

based on nothing more than “evidentiary time

travel.” Stockman’s time-and-space argument is

weakened by the absence of evidence supporting it,

but even more by the very strong evidence from

which the jury could reasonably infer that Stockman

had the intent to defraud from the time the money

was donated until it was fully spent.

Stockman does not deny that, shortly after

receiving donations from Rothschild and Uihlein, he

misappropriated the funds by disregarding the

purposes for which they were donated. Indeed,

Stockman does little to dispute the overwhelming

evidence that, shortly after receiving it, he quickly

diverted donor money to personal and political

projects having nothing to do with philanthropy or

education. Notwithstanding Stockman’s self-serving

view that later misappropriations cannot evidence

earlier bad faith, the jury could rationally have

inferred Stockman’s fraudulent intent from this

largely undisputed evidence. We thus find that the

government has also met its burden with respect to

the “intent” element of mail and wire fraud.

IV.

In this appeal, we have held that the district

court’s instructions were not erroneous. It was not

plain error for the district court to define 501(c)(3)

and 501(c)(4) organizations in the charge, and

Stockman was not entitled to an instruction on good

faith. We have also held that the district court did

not err by denying Stockman’s motions for judgment

of acquittal under Rule 29. The government provided

ample evidence that Stockman fraudulently devised,

and implemented, a scheme to deprive two donors of

their money and property, thus allowing the jury to

rationally find Stockman guilty of mail fraud, wire

fraud, and money laundering. And, we have further

19a

held that FECA’s contribution limits apply to

coordinated spending on political communications,

irrespective of whether those communications

contain magic words of express advocacy. We thus

have affirmed Stockman’s campaign finance

conviction.

In sum, the judgment of the district court is, in

all respects,

AFFIRMED.

20a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CRIMINAL NO. H-17-116-2

UNITED STATES OF AMERICA,

v.

STEPHEN E. STOCKMAN

ORDER

A jury convicted Stephen Stockman of 23

felony charges after a four-week trial. (Docket Entry

No. 211). Stockman moved for judgment of acquittal

under Rule 29 of the Federal Rules of Criminal

Procedure, and the government responded. (Docket

Entries No. 257, 261).

Under Rule 29, a jury’s verdict “will be affirmed

‘if a reasonable trier of fact could conclude from the

evidence that the elements of the offense were

established beyond a reasonable doubt.’” United

States v. Girod, 646 F.3d 304, 313 (5th Cir. 2011)

(quoting United States v. Myers, 104 F.3d 76, 78 (5th

Cir. 1997)). In assessing the sufficiency of the

evidence, a court does not “evaluate the weight of the

evidence or the credibility of the witnesses, but

view[s] the evidence in the light most favorable to the

verdict, drawing all reasonable inferences to support

the verdict.” Id. “The evidence need not exclude every

reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of

guilt, and the jury is free to choose among reasonable

constructions of the evidence.” United States v.

Anderson, 174 F.3d 515, 522 (5th Cir. 1999) (quoting

United States v. Burton, 126 F.3d 666, 669–70 (5th

Cir. 1997)).

Based on the motion, response, and a careful

review of the record and the evidence admitted at

trial, the motion for acquittal, (Docket Entry No.

21a

257), is denied. The reasons for this ruling are

explained below.

I.

Counts 3, 4, and the Related MoneyLaundering Charges

Stockman argues insufficient evidence to

support his convictions on counts 3 and 4, which

charge mail fraud relating to a $450,571.65 donation

by Richard Uihlein to fund postage for a purportedly

independent expenditure. Stockman argues that

Uihlein knew that his donation would not go toward

an independent expenditure because Uihlein knew

that Stockman would be involved in the project.

Stockman points to trial testimony showing that the

letter soliciting the donation, drafted by Kurt

Wagner, a Stockman constituent, used “we” and “us”

to refer to Wagner and Stockman acting together.

Stockman also points to testimony that Uihlein called

Wagner to discuss funding for the independent

expenditure. Stockman argues that although the

evidence may have shown that Stockman was

complicit in a coordinated, rather than independent,

expenditure, or may have shown an excessive

contribution by Uihlein, the evidence did not show that

Stockman intended to defraud Uihlein. Stockman

argues that, if Uihlein knew about the illegal scheme,

Stockman could not have intended to defraud him

because he was a knowing participant.

The government points to Uihlein’s trial

testimony that, when the solicitation was made, he

understood that the project would be done

independently of Stockman and his campaign:

[Prosecutor]: And did you understand, based on the

representations made to you, that the

advertising

would

be

done

independently of the defendant and his

campaign?

[Uihlein]:

Yes.

[Prosecutor]: Was that fact important to you when

you wrote this check?

22a

[Uihlein]:

Yes, it was.

[Prosecutor]: If you had been told that the

expenditure would, in fact, be made in

coordination with the defendant, would

you have written this check?

[Uihlein]: No, I wouldn’t.

(Docket Entry No. 192 at 51).

The government also points to evidence

showing Stockman’s actions to conceal his work with

the Center for the American Future, the organization

that coordinated the purportedly independent

expenditure. Those actions included: directing Jason

Posey, the Center’s director, to send a letter on

Center letterhead to Uihlein soliciting funding for the

expenditure; directing Posey to purchase “burner” cell

phones to communicate about the project; providing

content for the letter Wagner sent to Uihlein; and

Wagner’s trial testimony that Stockman had told

him that the solicitation had to come from someone

other than Stockman. (Gov’t Exs. 2014-2d, 2014-6i,

2014- 2g).

Viewed in “the light most favorable to the

government with all reasonable inferences . . . made

in support of the verdict,” the evidence was sufficient

for a jury to reasonably conclude that Stockman

intended to defraud Uihlein. United States v. Terrell,

700 F.3d 755, 760 (5th Cir. 2012) (internal quotation

and alteration omitted). Stockman points to evidence

that he argues may support an inference that Uihlein

knew that Stockman would have been involved with

the advertising project, including using the words

“we” and “us” in a fundraising solicitation sent by

one of Stockman’s constituents who ran a directmailing company. The government points to

significant conflicting evidence, including Uihlein’s

own testimony clearly stating that he relied on and

believed the representations that the project would be

independent from Stockman and his campaign, and

that he would not have written the check if he had

known that the funds would be used for a project

23a

that was not an independent expenditure.

The clear weight of the evidence supported the

convictions. The jury credited Uihlein’s explanation

and description of what Stockman told him and what

he knew, believed, and expected as a result. The jury

clearly did not believe the evidence that Stockman’s

counsel cites to make the argument about Uihlein’s

“real” motive. The evidence in the record was clearly

sufficient for the jury to conclude that Stockman

intended to defraud Uihlein and supports the verdict

on counts 3, 4, and the related money-laundering

charges. See Anderson, 174 F.3d at 522 (“[T]he jury is

free to choose among reasonable constructions of the

evidence.” (internal quotation omitted)).

II.

Counts 1, 8, and the Related MoneyLaundering Charges

Counts 1 and 8 charge mail and wire fraud

relating to a separate $350,000 donation by Uihlein

for the Freedom House project. Stockman moved for

acquittal on these counts and the related moneylaundering charges because “these counts rest on Mr.

Uihlein’s credibility in testifying that (a) his

donation was restricted and that (b) he

communicated such intent to Stockman.” (Docket

Entry No. 261 at 4). According to Stockman,

although Uihlein’s testimony appeared credible, “it

must not be evaluated in a vacuum separate and

apart from his objectively dubious testimony

regarding the ostensible $450,000 independent

expenditure” discussed above. (Id. at 5).

The government points to Uihlein’s trial

testimony that Stockman told him that his donation

would go toward the Freedom House; that he did not

know that the donation would instead go toward

Stockman’s political campaigns; and that he would

not have made the donation if Stockman had told him

that any part of the donation would go toward

Stockman’s political campaigns or personal

expenses. (Docket Entry No. 192 at 82–83). The

government also points to other evidence, including:

24a

a pamphlet Stockman gave to Uihlein that included

a photograph of a house and a proposed budget for

the Freedom House project, (Gov’t Ex. 2013-2d); bank

records showing that Stockman used some of

Uihlein’s Freedom House donation to pay a bonus to

a campaign worker, (Gov’t Exs. 2013-3a, 2013-31,

3013-3o-1, 2013-3o-2); and a letter that Posey sent to

Uihlein’s accountant stating that Uihlein’s donation

was used to “deliver medical supplies to third world

nations and support Freedom House,” (Gov’t Ex.

2013-2j).

The evidence admitted at trial undermines

Stockman’s argument that the jury should not have

been allowed to weigh Uihlein’s credibility on this

issue. That evidence was consistent with and amply

supported Uihlein’s testimony that he believed his

donations would go toward the Freedom House, not

to Stockman’s political campaigns and personal

expenses. Stockman asks the court to weigh Uihlein’s

testimony and find it lacking in credibility, but at this

stage, the court may not “evaluate the weight of the

evidence or the credibility of the witnesses.” Girod,

646 F.3d at 313. The evidence is sufficient to support

the verdict on counts 1, 8, and the related moneylaundering charges.

III. III. Counts 2, 5, 7, and the Related

Money-Laundering Charges

Counts 2, 5, and 7 relate to Stockman’s 2012

solicitations of donations from Stanford Rothschild to

the tax-exempt 501(c)(3) organization, Life Without

Limits. Rothschild died before trial did not testify.

Stockman argues that “[t]he fraud demonstrated at

trial was not a cheat on Stockman’s part, but a cheat

on Mr. Rothschild’s part” because Rothschild wanted

to donate to Stockman’s political campaign through

his foundation to avoid paying taxes. (Docket Entry

No. 257 at 5). Stockman argues that he solicited

donations from Rothschild for campaign-related

purposes, and that those donations were used for

Stockman’s campaign expenses, even though they

25a

were made to a tax-exempt 501(c)(3) organization.

Similar to his arguments about Uihlein’s donations,

Stockman argues, as he did at trial, that he did not

intend to deceive Rothschild, but at most was

“complicit in helping Mr. Rothschild cheat the IRS

while funding his campaign.” (Id. at 6).

The evidence at trial was sufficient for a

reasonable jury to discredit and reject that argument.

Stockman sent Rothschild several letters seeking

donations for his campaigns, but he directed

Rothschild to send the money to the Ross Center and

Life Without Limits, both tax-exempt 501(c)(3)

organizations, instead of to his campaign committee.

One letter stated that “[the Ross Center] along with

me desperately need your help. I’m told as long as

it’s good faith a check can be sent and received.”

(Gov’t Ex. 2012-2i). Attached to that letter was a

letter from the IRS approving the Ross Center as a

tax-exempt 501(c)(3) organization. (Id.). In another

letter, Stockman thanked Rothschild for an earlier

donation and sought another $52,000 donation to

support his primary campaign, stating that “[a]s an

accountant I am frugal and watchful that every

dollar you invest in our efforts to restore America is

used to defeat the left.” (Gov’t Ex. 2012-3g). At the

bottom of the letter, Stockman included instructions

to Rothschild to send the funds to Life Without

Limits. (Id.). In 2013, Stockman sent the Rothschild

Charitable Foundation a letter, on Life Without

Limits letterhead, confirming receipt of $140,000 in

tax-deductible contributions for 2012. The letter

stated, “[f]riends like you helped us educate many

people last year in traditional American values who

otherwise would not have been reached. . . . We are

looking forward to educating and motivating

American citizens to restore our nation to the JudeoChristian values and freedoms that made this nation

great!” (Gov’t Ex. 2012-4ee).

The jury also heard evidence about the context

and timing of those letters. Rothschild made

donations to Stockman in 2010 purported to be for

26a

voter-education projects. Ample evidence showed

that those funds were not used for voter-education

projects, but were instead used for Stockman’s

personal

expenses.

Additionally,

Rothschild’s

assistant testified that, when Rothschild made the

2012 donations, his health was declining to the point

that she sometimes had to write checks on his behalf.

She also testified that, in 2014, Rothschild’s charitable

organization withdrew his authority to make

donations because of concerns about his memory and

health. The concerns about Rothschild’s memory and

health in 2012 undermine Stockman’s argument about

Rothschild’s “improper” motives.

Ample

evidence

supported

the

jury’s

determination that the solicitation letters and the

later confirmation letter showed Stockman’s intent

to deceive Rothschild into thinking that he was

donating to charitable organizations, when in fact the

money was used for Stockman’s campaigns. Although

Stockman cites other evidence about his intent, the

jury was “free to choose among reasonable

constructions of the evidence.” Anderson, 174 F.3d at

522. The evidence was sufficient to support the

verdict on counts 2, 5, 7, and the related moneylaundering charges.

IV.

Conclusion

The motion for acquittal, (Docket Entry No.

257), is denied. The evidence was sufficient to

support the jury verdict on all of the challenged

counts.

SIGNED on June 13, 2018, at Houston, Texas.

/s/ Lee H. Rosenthal

Lee H. Rosenthal

Chief United States District Judge

27a

United States Court of Appeals for the

Fifth Circuit

No. 18-20780

UNITED STATES OF AMERICA,

PLAINTIFF - APPELLEE,

v.

STEPHEN E. STOCKMAN,

DEFENDANT - APPELLANT.

Appeal from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING EN BANC

(Opinion January 10, 2020, 5 Cir., __, __F.3d __)

Before: JOLLY, GRAVES, and HIGGINSON, Circuit

Judges.

PERCURIAM:

(x) Treating the Petition for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for

Panel Rehearing is DENIED. No member of the

panel nor judge in regular active service of the

court having requested that the court be polled on

Rehearing En Banc (FED. R. APP. P. and 5TH

CIR. R. 35), the Petition for Rehearing En Banc is

DENIED.

( ) Treating the Petition for Rehearing En Banc as a

Petition for Panel Rehearing, the Petition for

Panel Rehearing is DENIED. The court having

28a

been polled at the request of one of the members

of the court and a majority of the judges who are

in regular active service and not disqualified not

having voted in favor (FED. R. APP. P. and 5TH

CIR. R. 35), the Petition for Rehearing En Banc is

DENIED.

ENTERED FOR THE COURT:

/s/ E. Grady Jolly

UNITED STATES CIRCUIT JUDGE

29a

U.S. CONST. amend. I

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to

assemble, and to petition the government for a redress

of grievances.

52 U.S.C. § 30101(9)

(9)

(A) The term “expenditure” includes—

(i) any purchase, payment, distribution, loan,

advance, deposit, or gift of money or anything of value,

made by any person for the purpose of influencing any

election for Federal office; and

(ii) a written contract, promise, or agreement to

make an expenditure.

(B) The term “expenditure” does not include—

(i) any news story, commentary, or editorial

distributed through the facilities of any broadcasting

station, newspaper, magazine, or other periodical

publication, unless such facilities are owned or

controlled by any political party, political committee,

or candidate;

(ii) nonpartisan activity designed to encourage

individuals to vote or to register to vote;

(iii) any communication by any membership

organization or corporation to its members,

stockholders, or executive or administrative

personnel, if such membership organization or

corporation is not organized primarily for the purpose

of influencing the nomination for election, or election,

of any individual to Federal office, except that the

costs incurred by a membership organization

30a

(including a labor organization) or by a corporation

directly attributable to a communication expressly

advocating the election or defeat of a clearly identified

candidate (other than a communication primarily

devoted to subjects other than the express advocacy of

the election or defeat of a clearly identified candidate)

, shall, if such costs exceed $2,000 for any election, be

reported to the Commission in accordance with

section 30104(a) (4) (A) (i) of this title, and in

accordance with section 30104(a) (4) (A) (ii) of this title

with respect to any general election;

(iv) the payment by a State or local committee of

a political party of the costs of preparation, display, or

mailing or other distribution incurred by such

committee with respect to a printed slate card or

sample ballot, or other printed listing, of 3 or more

candidates for any public office for which an election

is held in the State in which such committee is

organized, except that this clause shall not apply to

costs incurred by such committee with respect to a

display of any such listing made on broadcasting

stations, or in newspapers, magazines, or similar

types of general public political advertising;

(v) any payment made or obligation incurred by a

corporation or a labor organization which, under

section 30118(b) of this title, would not constitute an

expenditure by such corporation or labor organization;

(vi) any costs incurred by an authorized

committee or candidate in connection with the

solicitation of contributions on behalf of such

candidate, except that this clause shall not apply with

respect to costs incurred by an authorized committee

of a candidate in excess of an amount equal to 20

percent of the expenditure limitation applicable to

such candidate under section 30116(b) of this title, but

31a

all such costs shall be reported in accordance with

section 30104(b) of this title;

(vii) the payment of compensation for legal or

accounting services—

(I) rendered to or on behalf of any political

committee of a political party if the person paying for

such services is the regular employer of the individual

rendering such services, and if such services are not

attributable to activities which directly further the

election of any designated candidate to Federal office;

or

(II) rendered to or on behalf of a candidate or

political committee if the person paying for such

services is the regular employer of the individual

rendering such services, and if such services are solely

for the purpose of ensuring compliance with this Act

or chapter 95 or chapter 96 of title 26,

but amounts paid or incurred by the regular

employer for such legal or accounting services shall be

reported in accordance with section 30104(b) of this

title by the committee receiving such services;

(viii) the payment by a State or local committee of

a political party of the costs of campaign materials

(such as pins, bumper stickers, handbills, brochures,

posters, party tabloids, and yard signs) used by such

committee in connection with volunteer activities on

behalf of nominees of such party: Provided, That—

(1) such payments are not for the costs of

campaign materials or activities used in connection

with any broadcasting, newspaper, magazine,

billboard, direct mail, or similar type of general public

communication or political advertising;

32a

(2) such payments are made from contributions

subject to the limitations and prohibitions of this Act;

and

(3) such payments are not made from

contributions designated to be spent on behalf of a

particular candidate or particular candidates;

(ix) the payment by a State or local committee of

a political party of the costs of voter registration and

get-out-the-vote activities conducted by such

committee on behalf of nominees of such party for

President and Vice President: Provided, That—

(1) such payments are not for the costs of

campaign materials or activities used in connection

with any broadcasting, newspaper, magazine,

billboard, direct mail, or similar type of general public

communication or political advertising;

(2) such payments are made from contributions

subject to the limitations and prohibitions of this Act;

and

(3) such payments are not made from

contributions designated to be spent on behalf of a

particular candidate or candidates; and

(x) payments received by a political party

committee as a condition of ballot access which are

transferred to another political party committee or the

appropriate State official.

52 U.S.C. § 30116(a)(7)(B)-(C)

(7)For purposes of this subsection—

…

(B)

(i)expenditures made by any person in

cooperation, consultation, or concert, with, or at the

request or suggestion of, a candidate, his authorized

33a

political committees, or their agents, shall be

considered to be a contribution to such candidate;

(ii)expenditures made by any person (other than a

candidate or candidate’s authorized committee) in

cooperation, consultation, or concert with, or at the

request or suggestion of, a national, State, or local

committee of a political party, shall be considered to

be contributions made to such party committee; and

(iii)the financing by any person of the

dissemination, distribution, or republication, in whole

or in part, of any broadcast or any written, graphic, or

other form of campaign materials prepared by the

candidate, his campaign committees, or their

authorized agents shall be considered to be an

expenditure for purposes of this paragraph; and [1]

(C)if—

(i)any person makes, or contracts to make, any

disbursement for any electioneering communication

(within the meaning of section 30104(f)(3) of this

title); and

(ii)such disbursement is coordinated with a

candidate or an authorized committee of such

candidate, a Federal, State, or local political party or

committee thereof, or an agent or official of any such

candidate, party, or committee;

such disbursement or contracting shall be treated as

a contribution to the candidate supported by the

electioneering communication or that candidate’s

party and as an expenditure by that candidate or that

candidate’s party; and

18 U.S.C. § 1341

Whoever, having devised or intending to devise

any scheme or artifice to defraud, or for obtaining

34a

money or property by means of false or fraudulent

pretenses, representations, or promises, or to sell,

dispose of, loan, exchange, alter, give away, distribute,

supply, or furnish or procure for unlawful use any

counterfeit or spurious coin, obligation, security, or

other article, or anything represented to be or

intimated or held out to be such counterfeit or

spurious article, for the purpose of executing such

scheme or artifice or attempting so to do, places in any

post office or authorized depository for mail matter,

any matter or thing whatever to be sent or delivered

by the Postal Service, or deposits or causes to be

deposited any matter or thing whatever to be sent or

delivered by any private or commercial interstate

carrier, or takes or receives therefrom, any such

matter or thing, or knowingly causes to be delivered

by mail or such carrier according to the direction

thereon, or at the place at which it is directed to be

delivered by the person to whom it is addressed, any

such matter or thing, shall be fined under this title or

imprisoned not more than 20 years, or both. If the

violation occurs in relation to, or involving any benefit

authorized, transported, transmitted, transferred,

disbursed, or paid in connection with, a presidentially

declared major disaster or emergency (as those terms

are defined in section 102 of the Robert T. Stafford

Disaster Relief and Emergency Assistance Act (42

U.S.C. 5122)), or affects a financial institution, such

person shall be fined not more than $1,000,000 or

imprisoned not more than 30 years, or both.

18 U.S.C. § 1343

Whoever, having devised or intending to devise

any scheme or artifice to defraud, or for obtaining

money or property by means of false or fraudulent

35a

pretenses, representations, or promises, transmits or

causes to be transmitted by means of wire, radio, or

television communication in interstate or foreign

commerce, any writings, signs, signals, pictures, or

sounds for the purpose of executing such scheme or

artifice, shall be fined under this title or imprisoned

not more than 20 years, or both. If the violation occurs

in relation to, or involving any benefit authorized,

transported, transmitted, transferred, disbursed, or

paid in connection with, a presidentially declared

major disaster or emergency (as those terms are

defined in section 102 of the Robert T. Stafford

Disaster Relief and Emergency Assistance Act (42

U.S.C. 5122)), or affects a financial institution, such

person shall be fined not more than $1,000,000 or

imprisoned not more than 30 years, or both.

FED. R. CRIM. PROC. 29(A)-(C)

(a) Before Submission to the Jury. After the

government closes its evidence or after the close of all

the evidence, the court on the defendant's motion

must enter a judgment of acquittal of any offense for

which the evidence is insufficient to sustain a

conviction. The court may on its own consider whether

the evidence is insufficient to sustain a conviction. If

the court denies a motion for a judgment of acquittal

at the close of the government's evidence, the

defendant may offer evidence without having reserved

the right to do so.

(b) Reserving Decision. The court may reserve

decision on the motion, proceed with the trial (where

the motion is made before the close of all the

evidence), submit the case to the jury, and decide the

motion either before the jury returns a verdict or after

it returns a verdict of guilty or is discharged without

36a

having returned a verdict. If the court reserves

decision, it must decide the motion on the basis of the

evidence at the time the ruling was reserved.

(c) After Jury Verdict or Discharge.

(1) Time for a Motion. A defendant may move for

a judgment of acquittal, or renew such a motion,

within 14 days after a guilty verdict or after the court

discharges the jury, whichever is later.

(2) Ruling on the Motion. If the jury has returned

a guilty verdict, the court may set aside the verdict

and enter an acquittal. If the jury has failed to return

a verdict, the court may enter a judgment of acquittal.

(3) No Prior Motion Required. A defendant is not

required to move for a judgment of acquittal before the

court submits the case to the jury as a prerequisite for

making such a motion after jury discharge.

FED. R. CRIM. PROC. 52(B)

(b) Plain Error. A plain error that affects

substantial rights may be considered even though it

was not brought to the court's attention.

37a