Opposition Brief — Hsia v. United States

No. 99-680

CLERK

‘

Jn the Supreme Court of the Uinitey States—

MARIA HSIA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether a prosecution for causing political com-

mittees to submit materially false statements to the

Federal Election Commission, in violation of 18 U.S.C.

1001 and 2(b), requires proof that the defeadant knew

her conduct was unlawful.

2. Whether conduct that violates provisions of the

Federal Election Campaign Act of 1971 (FECA), 2

U.S.C. 481 et seg., must be prosecuted under FECA’s

criminal enforcement provisions, or may be prosecuted

under general federal criminal provisions in Title 18 of

the United States Code.

(I)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction 1

Statement 2

Argument 7

Conclusion 19

TABLE OF AUTHORITIES

Cases:

Bryan v. United States, 524 U.S. 184 (1998) .......cccccecsssesse 9

Cheek v. United States, 498 U.S. 192 (1991) ....cecccccessesseeee 8

Clipper Exxpress v. Rocky Mountain Motor Tariff

Bureau, Inc., 690 F.2d 1240 (9th Cir. 1982), cert.

denied, 459 U.S. 1227 (1988) 18

Dowling v. United States, 478 U.S. 207 (1985) ................. 16

Edwards v. United States, 812 U.S. 478 (1941) ...........0.. 15

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .............. 18

Morton v. Mancari, 417 U.S. 585 (1974) 13

New York Times v. Sullivan, 376 U.S. 254 (1964) ........... 18

NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175

(1967) 17

NLRB v. Drivers Local Union, 362 U.S. 274

(1960) 17

Pipefitters Local Union v. United States, 407 U.S. 385

(1972) 17

Randall v. Loftsgaarden, 478 U.S. 647 (1986) ........cesssssse. 18, 14

Ratzlaf v. United States, 510 U.S. 185 (1994) .....ccscecsesseee 8,9

TVA v. Hill, 487 U.S. 158 (1978) 13

United States v. Armstrong, 909 F.2d 1288 (9th Cir.),

cert. denied, 498 U.S. 870 (1990) 10

United States v. Bakhtiari, 918 F.2d 1058 (2d Cir.

1990), cert. denied, 499 U.S. 924 (1991) 8

United States v. Barker, 980 F.2d 1408 (9th Cir.

Cir. 1991) 18

(ITT)

Cases—Continued: Page

United States v. Batchelder, 442 U.S. 114 (1979) ............. 18

United States v. Beacon Brass Co., 344 U.S. 43

(1952) 14

United States v. Bilzerian, 926 F.2d 1285 (2d Cir.),

cert. denied, 502 U.S. 813 (1991) 16

United States v. Boffa, 688 F.2d 919 (8d Cir. 1982),

cert. denied, 460 U.S. 1.22 (1983) 17

United States v. Borden Co., 308 U.S. 188 (1989) ............ 13

United States v. Brien, 617 F.2d 299 (1st Cir.),

cert. denied, 446 U.S. 919 (1980) 16

United States v. Cook, 586 F.2d 572 (5th Cir. 1978),

cert. denied, 442 U.S. 909 (1979) 10

United States v. Curran, 20 F.3d 560 (8d Cir.

1994) 8, 10, 12, 17

United States v. Daly, 756 F.2d 1076 (5th Cir.), cert.

denied, 474 U.S. 1022 (1985) 18

United States v. Daughtry, 48 F.3d 829 (4th Cir.),

vacated on other grounds, 516 U.S. 984 (1995) .......... 9, 12-13

United States v. DeLaurentis, 491 F.2d 208 (2d Cir.

1974) 17

United States v. Enmons, 410 U.S. 396 (1978) ..........scc00+ 17

United States v. Gabriel, 125 F.3d 89 (2d Cir. 1997) ....... 10,11

United States v. Hansen, 772 F.2d 940 (D.C. Cir.

1985), cert. denied, 475 U.S. 1045 (1986) 16

United States v. Hopkins, 916 F.2d 207 (5th Cir.

1990) 8,17

United States v. Jackson, 805 F.2d 457 (2d Cir.

1986), cert. denied, 480 U.S. 922 (1987) 16

United States v. Johnson, 390 U.S. 563 (1968) ............:000 17

United States v. Leal, 30 F.3d 577 (5th Cir. 1994),

cert. denied, 513 U.S. 1182 (1995) 8

United States v. Michaels, 796 F.2d 1112 (9th Cir.

1986), cert. denied, 479 U.S. 1088 (1987) 10

United States v. Mitchell, 39 F.3d 465 (4th Cir. 1994),

cert. denied, 515 U.S. 1142 (1995) 16

United States v. Moore, 423 U.S. 122 (1975) ........cecscsssesees 16

Cases—Continued: Page

United States v. Noveck, 273 U.S. 202 (1927) ...........cccseee 15

United States v. Oakar, 111 F.3d'146 (D.C. Cir.

1997) 8

United States v. Parsons, 967 F.2d 452 (10th Cir.

1992) 16

United States v. Rodriguez-Rios, 14 F.3d 1040 (5th

Cir. 1994) 9

United States v. Steinhilber, 484 F.2d 386 (8th Cir.

1978) 8

United States v. Tomeny, 144 F.3d 749 (11th Cir.

1998) 16

United States v. West Indies Transp., Inc., 127 F.3d

299 (8d Cir. 1997), cert. denied, 118 S. Ct. 700 (1998) ..... 10

United States v. Yermian, 468 U.S. 63 (1984) ............c000 8

Constitution and statutes:

U.S. Const. Amend. I 6,18

Federal Election Campaign Act of 1971, 2 U.S.C. 431

et seq. 2

2 U.S.C. 431(18) 2

2 U.S.C. 434(b)(8)(A) 2

2 U.S.C. 437e(b) 2

2 U.S.C. 437g(a) 3

2 U.S.C. 487g(d) 15

2 U.S.C. 487g(d)(1(A) 8

2 U.S.C. 441a(a)(1)(A) 2

2 U.S.C. 441a(a(iXC) 2

2 U.S.C. 441a(ay(3) 2

2 U.S.C. 441b 2

2 U.S.C. 441f 2

18 U.S.C. 2 6, 10, 15

18 U.S.C. 2(b) x passim

18 U.S.C. 371 4

18 U.S.C. 510 16

18 U.S.C. 545 16

Pee OE OTe Ce TG a ee ea eS OMS TFs. 4s

Statutes—Continued:

18 U.S.C. 924(a)(1)(D)

18 U.S.C. 1001

26 U.S.C. 501(¢)(3)

Miscellaneous:

U.S. Dep’t of Justice Manual, Federal Prosecution

of Election Offenses

14

In the Supreme Court of the Gnited States

No. 99-680

MARIA HSIA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-19a)

is reported at 176 F.3d 517. The opinions of the district

court (Pet. App. 20a-52a and 53a-113a) are reported at

24 F. Supp. 2d 14 and 24 F. Supp. 2d 33.

JURISDICTION

The judgment of the court of appeals was entered on

May 18, 1999. A petition for rehearing was denied on

August 2, 1999 (Pet. App. 117a). The petition for a writ

of certiorari was filed on October 20, 1999. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

A federal grand jury in the District of Columbia in-

dicted petitioner on, inter alia, five counts of causing

political committees to submit materially false state-

ments to the Federal Election Commission (FEC), in

violation of 18 U.S.C. 1001 and 2(b). The district court

dismissed the false statement counts, and the court of

appeals reversed. Pet. App. la-19a.

1. a. The Federal Election Campaign Act of 1971

(FECA), 2 U.S.C. 431 et seq., imposes limits on contri-

butions to candidates for federal office. Individuals

may contribute no more than $1000 to any candidate

with respect to any election, and may contribute no

more than $25,000 to political committees in any calen-

dar year. 2 U.S.C. 441la(a)(1)(A) and (C); 2 U.S.C.

441a(a)(3). Corporations are prohibited altogether from

making contributions in connection with federal elec-

tions. 2 U.S.C. 441b. To ensure that the Act’s contri-

bution limitations are not easily evaded, FECA pro-

vides that “[nJo person shall make a contribution in the

name of another person or knowingly permit his name

to be used to effect such a contribution, and no person

shall knowingly accept a contribution made by one

person in the name of another.” 2 U.S.C. 441f. Further,

the Act requires political committees to keep detailed

records of their financial activities, and to file periodic

reports with the FEC disclosing, inter alia, the name,

mailing address, occupation, and employer of each

“person who makes a contribution” to the committee

and whose aggregate annual contributions exceed $200.

2 U.S.C. 481(18), 484(b)(8)(A). Pet. App. 2a-8a, 9a;

Gov't C.A. Br. 3-4.

The FEC administers FECA and has exclusive juris-

diction over civil enforcement. 2 U.S.C. 437c(b). The

Act gives the FEC the power to assess civil penalties

for any “violation” of the Act, and enhanced penalties

for a “knowing and willful” violation. 2 U.S.C. 487g(a).

FECA also provides criminal penalties for certain

“knowing{] and willful[}” violations, up to a maximum of

one year imprisonment, a fine, or both. 2 U.S.C. 437g(d)

(1)(A). Gov’t C.A. Br. 5.

b. Petitioner is an immigration consultant in the Los

Angeles area. The International Buddhist Progress

Society (IBPS), which operates the Hsi Lai Temple in

Hacienda Heights, California, is a tax-exempt religious

organization incorporated in California and prohibited

from participating in political campaigns under 26

U.S.C. 501(c)(8). The indictment alleges that petitioner

funneled money from IBPS and others into various poli-

tical campaigns by using straw contributors. Petitioner

either would find and solicit individuals to serve as

nominal contributors or ask others (including IBPS) to

do so. Some of the conduits were nuns, monks, and

volunteers from IBPS, while others were friends and

associates of petitioner. In one instance, petitioner

herself acted as a straw contributor. The nominal

contributors were reimbursed in full by the actual

contributors, including IBPS. The indictment alleges

that petitioner thereby caused IBPS and others to

make illegal contributions to political campaigns. Pet.

App. 3a; Gov’t C.A. Br. 6-8; Indictment J] 1, 2, 20-21,

27-28, 31-33, 36-39, 40(t)-(v), (y)-(bb), (ff)-(pp); Bill of

Particulars at 13-20.

Counts Two through Six of the Indictment charge

that petitioner willfully caused the political committees

that were the recipients of the conduit contributions to

submit materially false statements to the FEC, in vio-

4

lation of 18 U.S.C. 1001 and 2(b).’ The political com-

mittees filed reports listing the conduit contributions as

being from their nominal sources, although the true

source was either IBPS or petitioner’s immigration

clients. Pet. App. 4a; Gov't C.A. Br. 7-8.

2. The district court dismissed Counts Two through

Six, the false statement counts. The court questioned

whether the statements alleged in the indictment—the

names of the “contributors” in the political committees’

reports—could have been false, since, in the court’s

view, a report by a political committee that a particular

individual is a contributor is false only if the committee

knew that the named individual was not the real

contributor. Pet. App. 106a. The court also doubted

that the indictment alleged conduct by petitioner “that

could have ‘caused’ the political committees to file false

statements,” id. at 108a, in part on the ground that it

believed that the First Amendment limited the extent

to which ordinary theories of causation could be applied

in the FECA context. Id. at 1lla. Finally, the court

noted that, in its view, showing that petitioner acted

knowingly and willfully under Sections 1001 and 2(b)

for causing a false statement to be made would require

proof that she knew that her conduct was illegal—i.e.,

that she “knew of the [political party] treasurers’

reporting obligation, that [she] attempted to frustrate

those obligations [sic], and that [she] knew [her] con-

duct was unlawful,” Pet. App. 111a n.32, and the court

stated that “(i]t is difficult, if not impossible * * * to

imagine how the government possibly could prove”

1 Count One of the indictment charged petitioner with a

conspiracy to defraud the FEC, in vioiation of 18 U.S.C. 371. Pet.

App. 4a. That count was dismissed on the government’s motion

after the case was remanded to the district court.

5

those facts in this case. [bid. Taking all of those factors

together, the court «’2+ :rmined that to hold that Sec-

tions 1001 and 2(b) prucvribed the conduct alleged here

would violate the Cor**ution. Jd. at 118a. It accord-

ingly dismissed the false statement counts.

In so doing, the court did not rely on petitioner’s

contention that the Federal Election Campaign Act

“impliedly repeals the more general provisions of the

Federal Criminal Code, specifically the false statements

statute, 18 U.S.C. § 1001,” and that this prosecution

therefore must be brought either under FECA or not

at all. Pet. App. 57a-72a. “[TJhere is no inconsistency

between FECA and the general criminal provisions

employed by the government here,” the court ex-

plained, “[nJor is there any indication in the language or

legislative history of FECA to indicate that Congress

intended the criminal provisions of the Act to displace

any of the more general federal criminal provisions in

Title 18 of the United States Code.” Jd. at 71a.

3. The court of appeals reversed. Pet. App. 1a-19a.

The court held that the political committees’ reports, by

listing the names of the conduits—rather than the

actual sources of the funds—as the contributors,

contained “false” statements. Jd. at 9a-12a. The court

explained that FECA’s “demand for identification of

the ‘person . . . who makes a contribution’ is not a

demand for a report on the person in whose name

money is given; it refers to the true source of the

money.” Jd. at 10a. The court of appeals also concluded

that petitioner, by soliciting and in some cases relaying

conduit contributions to the political committees, could

have “caused” the filing of false statements and that

therefore “the case fits comfortably within the clear and

previously accepted scope of §§ 2(b) and 1001.” Td. at

6a-8a. The court of appeals also rejected petitioner’s

en

6

claim that First Amendment considerations required

dismissal of the false statement counts. The court

found that petitioner’s conduct in soliciting unlawful

conduit contributions did not involve constitutionally i

protected expression. /d. at 12a-13a.

With respect to the issues presented in the petition

for certiorari, the court of appeals held that the gov-

ernment was not required to prove that petitioner

knew her conduct was unlawful. The court reasoned

that because petitioner was charged with causing a

false statement offense, the government could establish

the necessary mens rea “simply by proof (1) that

[petitioner] knew that the statements to be made were

false (the mens rea for the underlying offense—§ 1001)

and (2) that [petitioner] intentionally caused such state-

ments to be made by another (the additional mens rea

for § 2(b)).” Pet. App. 6a. The court accordingly held

that “nothing in the indictment’s allegations contradicts

the government’s capacity to prove the statutorily

required mens rea.” bid.

In addition, relying on the settled presumption

against repeal by implication, the court of appeals

agreed with the district court that FECA did not

impliedly repeal Sections 1001 and 2, insofar as those

provisions apply to the charge that an individual has

caused false statements to be made by political

committees. Pet. App. 18a-14a.? The court explained

2 The court of appeals also held that petitioner’s cross-appeal

of the district court’s refusal to dismiss the conspiracy count

(Count 1), was not properly before it. Pet. App. 14a-l6a. Judge

Rogers concurred in the court’s decision not to entertain peti-

tioner’s cross-appeal, although she would not have reached all of

the grounds addressed by the majority. Jd. at 16a-19a. As noted

above, see note 1, supra, the government voluntarily dismissed

Count 1 after the court of appeals’ decision in this case.

7

that it “will not find repeal [by implication] absent ‘clear

and manifest’ evidence that it was intended.” Jd. at 13a.

The court concluded that “[petitioner] presents no evi-

dence of this sort.” Ibid.

ARGUMENT

Petitioner contends that there is a conflict in the cir-

cuits that warrants further review of the court of

appeals’ holding that the government need not prove

that petitioner knew her acts were unlawful in order to

convict her on the false statement counts. Review of

that narrow legal issue is not justified at this time and

in any event would be premature in this case. Peti-

tioner is scheduled to go to trial imminently, and peti-

tioner’s claim, which essentially involves the content of

the instructions that will be given to the jury, would

more appropriately be considered after any resulting

conviction, when the issue will be presented in a

concrete factual setting and with the benefit of specific

instructions to review.

Petitioner also argues that the false statement counts

must be dismissed because, in her view, the FECA is

the exclusive means of enforcing compliance with the

federal election laws. The decisions of both courts

below rejecting petitioner’s contention are correct, and

there is no conflict with any decision of any other court

of appeals. Further review of that question is therefore

not warranted.

1. The court of appeals in this case held that, in a

“conduit contribution” campaign finance case brought

pursuant to Sections 1001 and 2(b), the government

must prove that the defendant intentionally caused

statements to be made that she knew to be false, but

that the government need not prove that the defendant

knew that her conduct was illegal. Petitioner contends

8

(Pet. 12-17) that proof of knowledge of illegality is re-

quired. Petitioner claims that the court of appeals’

ruling conflicts with this Court’s decision in Ratzlaf v.

United States, 510 U.S. 135 (1994), and that of the Third

Circuit in United States v. Curran, 20 F.3d 560 (1994).

a. The false statement statute, 18 U.S.C. 1001, re-

quires proof that the defendant “knowingly and will-

fully” made a materially false statement, and that the

statement was made in a matter within federal agency

jurisdiction. United States v. Leal, 30 F.3d 577, 584 (5th

Cir. 1994), cert. denied, 513 U.S. 1182 (1995). The term

“knowingly” requires the government to prove that the —

defendant was aware the statement was false when she

made it. United States v. Steinhilber, 484 F.2d 386, 389-

390 (8th Cir. 1973); see also United States v. Bakhtiari,

913 F.2d 1053, 1059-1061 (2d Cir. 1990) (citing cases),

cert. denied, 499 U.S. 924 (1991); United States v.

Oakar, 111 F.3d 146, 158 (D.C. Cir. 1997) (Williams, J.,

concurring in part and dissenting in part). The term

“willfully” in Section 1001 has been consistently inter-

preted to mean that the defendant acted “deliberately”

in conveying false information to another, but it too

does not require proof that the defendant knew that

making the statement was illegal. See, e.g., United

States v. Hopkins, 916 F.2d 207, 214 (5th Cir. 1990).

See also Cheek v. United States, 498 U.S. 192, 209

(1991) (Scalia, J., concurring) (noting the general rule

that “willfully” “refers to consciousness of the act but

not to consciousness that the act is unlawful”). Indeed,

“defining the term ‘willfully’ in a Section 1001 pro-

secution to require a knowing violation of the law would

circumvent the holding of United States v. Yermian,

468 U.S. 63, 68-76 (1984), that actual knowledge of

federal agency jurisdiction is not required to prove a

violation of § 1001.” United States v. Daughtry, 48 F.3d

9

829, 831 (4th Cir.), vacated on other grounds, 516 U.S.

984 (1995).

This Court’s decision in Ratzlaf dces not support

petitioner’s contention that Section 1001 requires proof

that petitioner knew her conduct was illegal. Ratzlaf

involved the statutory prohibition against structuring

currency transactions “for the purpose of evading”

certain reporting requirements. The Court held that

the criminal prohibition against “willfully violat[ing]”

- the anti-structuring provision required proof that the

defendant knew that the structuring was unlawful. See

510 US. at 138, 149. The Court in Ratzlaf relied signifi-

cantly on the consideration that the underlying pro-

vision required a “purpose of evading” the structuring

law, so that “willfully” would be superfluous if read to

require only deliberate action; the Court did not

estabiish a per se rule that a conviction for “willful” acts

requires proof that the defendant understood the

illegality of his conduct. To the contrary, the Court

recognized that the term “willful” is a “word of many

meanings,” and “its construction [is] often . .

influenced by context.” Id. at 141. Indeed, the Ratzlaf

Court explicitly reaffirmed the “venerable principle”

that ignorance of the law is not a defense. Jd. at 149.

See also Bryan v. United States, 524 U.S. 184, 193-196

(1998) (declining to apply Ratzlafs definition of “will-

fully” to 18 U.S.C. 924(a)(1)(D)). Following Ratzlaf, the

courts of appeals have continued to hold that the term

“willfully” in Section 1001 means deliberate action, not

knowledge that the conduct pursued is unlawful.

Daughtry, 48 F.3d at 831-8382; United States v.

Rodriguez-Rios, 14 F.3d 1040, 1048 n. 21 (5th Cir. 1994)

(en banc).

The fact that petitioner was charged under Section

2(b), which contains its own “willfulness” requirement,

FENDER So ge Dc ns ee

10

does not alter the result. Section 2 does not itself define

a substantive offense, but rather “describes the kinds of

individuals who can be held responsible for a crime.”

United States v. Armstrong, 909 F.2d 1238, 1243 (9th

Cir.) (citation omitted), cert. denied, 498 U.S. 870

(1990). Under Section 2(b), an individual who causes an

intermediary to commit a crime is culpable himself,

so long as he possesses the intent to commit the under-

lying offense. United States v. Gabriel, 125 F.3d 89, 98

(2d Cir. 1997); United States v. Michaels, 796 F.2d 1112,

1117-1118 (9th Cir. 1986), cert. denied, 479 U.S. 1038

(1987). Accordingly, “an indictment [under Section

2(b)] is sufficient if it alleges the criminal intent

required for the substantive offense.” United States v.

Cook, 586 F.2d 572, 575 (5th Cir. 1978), cert. denied, 442

U.S. 909 (1979). Thus, as the court of appeals properly

held, the requirement in Section 2(b) that the defendant

“willfully cause[d]” an offense means only that the

defendant intended to bring about the act constituting

the crime, see, e.g., United States v. West Indies Tran-

sport, Inc., 127 F.3d 299, 307 (8d Cir. 1997), cert. denied,

118 S. Ct. 700 (1998), not that he must know that his

conduct is unlawful, see, e.g., United States v. Michaels,

706 F.2d at 1117-1118.

b. Petitioner correctly notes (Pet. 12) that the Third

Circuit has held that, when the government proceeds

under Sections 2(b) and 1001 in a federal election law

prosecution, “(t]he intent element differs from that

needed when the prosecution proceeds directly under

Section 1001.” United States v. Curran, 20 F.3d at 567.

According to the Third Circuit, “a proper charge for

willfulness in cases brought under Sections 2(b) and

1001 in the federal election law context requires the

prosecution to prove that defendant knew of the

treasurers’ reporting obligations, that he attempted to

11

frustrate those obligations, and that he knew his

conduct was unlawful.” Id. at 569 (emphasis added).

The Curran court relied on what it perceived to be

similarities between the currency reporting laws at

issue in Ratzlaff and the federal election statutes. Jbid.

The court did not explain how its view that Sections

1001 and 2(b) require proof of knowledge of illegality in

the federal election law context can be squared with

settled interpretations of both statutes, which establish

that neither requires proof of knowledge of illegality in

other contexts. See United States v. Gabriel, 125 F.3d

at 101-102 (rejecting Curran and holding that “the

considerations that led the Ratzlaf Court to interpret

‘willfully’ to require a knowing violation of the law

under section 5322 are of little aid in interpreting

section 2(b).”).

The disagreement between the District of Columbia

Circuit and the Third Circuit does not warrant further

review. The court of appeals’ ruling is interlocutory in

nature, since its effect is simply to send the case back

for trial in the district court. The district court has set

a trial date of January 18, 2000, and it has indicated that

it intends to swear in the jury at some time after

January 24, 2000. Petitioner is in the same position she

would have been if the district court had denied her

motion to dismiss, thus permitting the trial to proceed

and preserving petitioner’s right to raise her claim

regarding the correct construction of the statute on

appeal of any resulting conviction. At that time,

moreover, petitioner will be able to present all of her

claims in a single petition, thus avoiding piecemeal

litigation.

Premature resolution of the issue petitioner seeks to

raise is particularly inappropriate. The question

whether the government must show that petitioner

12

knew that her conduct was illegal is a question that

concerns the proper framing of jury instructions in this

case. In Curran, the Third Circuit addressed that

question on appeal from a final conviction, where it had

before it the full record of the trial and the precise jury

instructions that had been given. See 20 F.3d at 569-

570. The question presented in this case can similarly

best be considered in a more concrete factual setting

and with the benefit of the precise jury instructions

that were given.

Finally, the difference in practice between the posi-

tions of the District of Columbia Circuit and the Third

Circuit on this issue is not necessarily great. In a

conduit contribution case brought under Sections 1001

and 2(b), both courts require the government tu prove

that the defendant caused, and intended to cause, a

political committee to make a statement (that the

named individual is the contributor) that the defendant

knew to be false (in that the individual named as the

contributor is not the true source of the funds). In

order to prove the defendant’s knowledge that that

statement is false, the government ordinarily will have

to show that the defendant knew that the political

committee’s listing of a particular person as the

contributor means that that person was “the true

source of the money,” rather than “the person in whose

name money is given.” Pet App. 10a. Thus, although

the court of appeals in this case held that the

government need not prove that the defendant knew

that making that kind of false statement is illegal, in

cases like this the government will ordinarily show that

the defendant had some knowledge of the law in order

to show the defendant’s knowledge of falsity. That

“preclude[s] the possibility that criminal penalties [will

be] imposed on the basis of innocent conduct.” United

13

States v. Daughtry, 48 F.3d at 832. And, in practice, the

result may be similar to the proof required in the Third

Circuit under Curran.

2. Petitioner argues (Pet. 17-22) that FECA is the

exclusive means of enforcing compliance with its re-

porting provisions and thus repeals pro tanto the more

general criminal provisions of the false statements

statute, 18 U.S.C. 1001. Both courts below, consistent

with every court of appeals that has addressed the

issue (including the Third Circuit in Curran, see 20

F.3d at 565-566), correctly held that FECA does not

repeal by implication the more general provisions of the

false statements statute. Further review, especially in

the interlocutory posture of this case, is therefore not

warranted.

a. It is a “cardinal principle of construction that re-

peals by implication are not favored.” United States v.

Borden Co., 308 U.S. 188, 198 (1939); see, e.g., Randall

v. Loftsgaarden, 478 U.S. 647, 661 (1986); TVA v. Hill,

437 U.S. 153, 189-190 (1978); Morton v. Mancari, 417

U.S. 535, 551 (1974). As the Court has explained,

“[wJhen there are two acts upon the same subject, the

rule is to give effect to both if possible.” United States

v. Borden Co., 308 U.S. at 198. A legislative intent to

repeal must be “clear and manifest,” and it is not

enough to show that a subsequent statute “cover[s]

some or even all of the cases provided for by [the prior

act],” ibid., or that “the two statutes produce differing

results when applied to the same factual situation,”

United States v. Batchelder, 442 U.S. 114, 122 (1979).

That principle fully applies when conduct violates more

than one criminal statute. Absent an “intent to repeal

* * * manifest in the ‘positive repugnancy ” between

two overlapping criminal statutes, decisions as to

“{w]hether to prosecute and what charge to file or bring

14

before a grand jury * * * generally rest in the

prosecutor’s discretion.” Jd. at 122, 124 (overlapping

gun provisions). See also United States v. Beacon

Brass Co., 344 U.S. 48, 45-46 (1952).

This case does not justify the invocation of either of

the two exceptions to the rule severely disfavoring

implied repeals—where there is “irreconcilable conflict”

between the two statutes or where “the later act covers

the whole situation of the earlier one and is clearly

intended as a substitute.” Randall, 478 U.S. at 661.

There is no “conflict” or “positive repugnancy” between

the FECA and the false statements statute: FECA

imposes limits on contributions to candidates for federal

office and requires political committees to keep records

of their financial activities and file periodic reports with

the FEC disclosing the identity of persons making

contributions to the committee. The false statement

statute at the time relevant to this case, see Pet. App.

5a n.2, proscribed the willful making of any materially

false statement “in any matter within the jurisdiction of

any department or agency of the United States.” Both

statutes define distinct criminal offenses and, by re-

fraining from committing both offenses, individuals may

easily comply with both statutes.

Nor does either statute cover “the whole situation” of

the other. In order to prove a violation of Section 1001

(or of Sections 1001 and 2), the government has to

3 Petitioner’s attack (Pet. 7-9, 24) on the evolution of the De-

partment of Justice’s approach to prosecution of election campaign

violations, as reflected in successive editions of the Department

manual, Federal Prosecution of Election Offenses, is misdirected.

In fact, that evolution reflects cautious consideration, guided by

accumulated experience and relevant legal developments, of how

prosecutorial discretion might best be exercised in attacking

criminal conduct in election campaigns.

15

prove that a false statement was made—a fact not

necessary for proof of a criminal FECA violation under

2 U.S.C. 437g(d), which may simply involve the making

of an illegal contribution. And Section 1001 applies to

false statements within the jurisdiction of all federal

agencies. In order to prove a violation of FECA’s

criminal prohibitions, by contrast, the government must

prove a violation of a provision of the FECA, which of

course is not necessary in a prosecution under Section

1001. Each statute thus prohibits substantial conduct

that is not prohibited by the other.

Petitioner argues (Pet. 19-21) that Congress intended

in enacting FECA to regulate all aspects of campaign

finances, and that Congress therefore did not intend

that campaign reporting violations would be prosecuted

under the false statements statute. But the general

rule disfavoring implied repeals has been applied even

in situations where Congress has enacted subsequent

legislation that may be characterized as “compre-

hensive” and has also established an administrative

agency with regulatory jurisdiction in the area. In

Edwards v. United States, 312 U.S. 473, 484 (1941), the

Court summarily rejected an argument that the

Securities Act of 1933 repealed the provisions of the

mail fraud statute insofar as they covered securities,

noting that “(t]he two can exist and be useful, side by

side.” Similarly, the Court in United States v. Noveck,

273 U.S. 202, 205 (1927), rejected an argument that a

statute prohibiting anyone from “willfully attempt[ing]

in any manner to defeat or evade” an income tax im-

pliedly repealed the general perjury statute, insofar as

that statute applied to perjurious statements on a tax

return. The Court noted that there “was confessedly no

express repeal” and that “it is clear that the two sec-

tions are not inconsistent.” Id. at 206. Because the two

16

offenses “are entirely distinct in point of law, even

when they arise out of the same transaction or act,” the

Court found that the conclusion that “Congress must

have intended” an implied repeal “does not follow.”

Ibid. See also, e.g., United States v. Moore, 428 U.S.

122, 188 (1975) (prosecution for drug distribution rather

than for violation of registration provisions); United

States v. Tomeny, 144 F.3d 749 (11th Cir. 1998) (mis-

demeanor false statement provision of the Magnuson-

Stevens Fishery Conservation and Management Act

did not preempt felony prosecution under 18 U.S.C.

1001); United States v. Mitchell, 39 F.3d 465, 471-476

(4th Cir. 1994) (provision of misdemeanors for violation

of Endangered Species Act and Department of Agri-

culture regulations do not preclude felony prosecution

for violation of those regulations under 18 U.S.C. 545),

cert. denied, 515 U.S. 1142 (1995).*

4 See also United States v. Parsons, 967 F.2d 452, 456 (10th

Cir. 1992) (false statements to Internal Revenue Service are pro-

secutable under either Section 1001 or the specific provisions of the

Internal Revenue Code); United States v. Bilzerian, 926 F.2d 1285,

1299-1304 (2d Cir.) (antifraud provisions of Securities Exchange

Act do not preclude prosecution under 18 U.S.C. 1001), cert.

denied, 502 U.S. 813 (1991); United States v. Jackson, 805 F.2d 457,

459-464 (2d Cir. 1986) (misdemeanor provisions of 18 U.S.C. 510 do

not preclude felony prosecution under general conversion statute,

18 U.S.C. 641), cert. denied, 480 U.S. 922 (1987); United States v.

Hansen, 772 F.2d 940, 944 (D.C. Cir. 1985) (civil enforcement

provisions of Ethics in Government Act did not repeal application

of Section 1001 to false statements made in reports filed pursuant

to its disclosure provisions), cert. denied, 475 U.S. 1045 (1986);

United States v. Brien, 617 F.2d 299, 309-311 (1st Cir.) (antifraud

provisions of the Commodity Futures Trading Act did not preempt

or implicitly repeal the general mail and wire fraud statutes), cert.

denied, 446 U.S. 919 (1980).

17

The cases relied on by petitioner (Pet. 18-19) for the

proposition that “broad, general criminal statutes do

not apply te an area specifically and comprehensively

regulated by a targeted statute,” are inapposite. In

each of those cases, the court declined to find that the

challenged conduct was covered by a “broad, general

criminal statute,” because the language of that statute

did not “plainly and unmistakably” cover the conduct,

Dowling v. United States, 473 U.S. 207, 229 (1985),

whereas another, narrower statute squarely targeted

such conduct. Unlike the situation in those cases, where

there was “ambiguity concerning the ambit” of the

broader statute, ibid., there is no question that the false

statements statute covers the false reports alleged in

this case.

The two other courts of appeals that have considered

the precise issue presented here have rejected the

contention that campaign reporting violations may be

prosecuted only under the misdemeanor provisions of

FECA. See United States v. Hopkins, 916 F.2d at 218

(finding “no indication in the federal election laws that

Congress intended them to supplant the general

criminal statutes found in Title 18”); United States v.

Curran, 20 F.3d at 566 (noting that “an examination of

the legisiative history of the Election Campaign Act

and its amendments uncovers no express evidence that

5 See Dowling v. United States, 473 U.S. 207 (1985); United

States v. Enmons, 410 U.S. 396 (1973); Pipefitters Local Union v.

United States, 407 U.S. 385, 412 (1972); United States v. Johnson,

390 U.S. 563, 564-566 (1968); NLRB v. Allis-Chalmers Mfg. Co.,

388 U.S. 175, 194 (1967); NLRB v. Drivers Local Union, 362 U.S.

274, 291-292 (1960); United States v. Boffa, 688 F.2d 919, 928-929

(8d Cir. 1982), cert. denied, 460 U.S. 1022 (1983); United States v.

DeLaurentis, 491 F.2d 208, 214 (2d Cir. 1974).

18

the Act was intended to preempt the general criminal

provisions under 18 U.S.C. §§ 2(b), 371, or 1001”).

Petitioner argues (Pet. 21) that the false statement

statute cannot be applied to her conduct, which she

characterizes as expression protected by the First

Amendment, because it “cannot survive strict, or even

close, scrutiny.” Petitioner argues that “(tjhere is no

compelling governmental interest” that could justify

prosecuting conduit contributions as false statements

under Section 1001, rather than as violations of the

FECA. Ibid. Petitioner, however, is not charged with

soliciting political contributions, which is activity pro-

tected by the First Amendment. Rather, she is

charged in the false statements counts with using

conduits to disguise the source of political contributions

and thereby causing false representations on a matter

within the jurisdiction of the FEC. Such conduct is not

immunized by the First Amendment. See, e.g., Gertz v.

Robert Welch, Inc., 418 U.S. 323, 340 (1974); see also

United States v. Barker, 930 F.2d 1408, 1412 (9th Cir.

1991) (“There is simply no constitutional right to file a

false claim.”); United States v. Daly, 756 F.2d 1076,

1081 (5th Cir.), cert. denied, 474 U.S. 1022 (1985);

Clipper Exxpress v. Rocky Mountain Motor Tariff

Bureau, Inc., 690 F.2d 1240, 1261 (9th Cir. 1982), cert.

denied, 459 U.S. 1227 (1983). Moreover, although peti-

tioner argues (Pet. 25) that the court of appeals’ de-

cision would “chill” legitimate contributors to political

campaigns, ample protection for such legitimate con-

tributors is provided by the uniformly recognized

requirement that a defendant cannot be held liable for

making (or causing) a false statement under Section

1001 unless the government can prove beyond a rea-

sonable doubt that the defendant had actual knowledge

of the statement’s falsity. Cf. New York Times v.

19

Sullivan, 376 U.S. 254, 280 (1964) (libel against public

official relating to official conduct requires proof of

“knowledge that [statement] was false or * * *

reckless disregard of whether it was false or not”).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JAMES K. ROBINSON

Assistant Attorney General

DEBORAH WATSON

DECEMBER 1999