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United States v. Whittemore

United States Court of Appeals, Ninth Circuit

January 26, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
F. HARVEY WHITTEMORE, Defendant-Appellant

Argued and Submitted, San Francisco, California October 6, 2014

Page 1075

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

SUMMARY[*]

Criminal Law

The panel affirmed convictions of making excessive campaign contributions in violation of 2 U.S.C. § § 441a(a)(1) and 437g(d)(1)(A)(i), and making contributions in the name of another in violation of 2 U.S.C. § § 441f and 437g(d)(1)(A)(i).

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

The panel did not entertain the defendant's challenge to the district court's tentative ruling denying the defendant's motion in limine to exclude proffered testimony from a linguistics professor, where the defendant never renewed the motion. Regarding the defendant's contentions that the district court improperly allowed speculative testimony in violation of Fed.R.Evid. 602, the panel held that defense counsel had opened the door to some of the testimony, that some of the testimony was not impermissibly speculative, and that any error was harmless.

The panel held that there was sufficient evidence to support the conviction.

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

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

Before: Kim McLane Wardlaw, William A. Fletcher, and Paul J. Watford, Circuit Judges. Opinion by Judge W. Fletcher.

OPINION

Page 1076

W. FLETCHER, Circuit Judge

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

We affirm.

I. Background

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

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

On March 27, 2007, the day of the second follow-up call, Whittemore transferred a total of $145,000 to seventeen relatives and employees through wire transfers and checks. Those who were single received $5,000, while couples who were married or engaged received $10,000. Each recipient made a campaign contribution to Senator

Page 1077

Reid's campaign of the statutory maximum contribution of $4,600, most within one day of receiving the money. Many of the recipients testified at trial that they would not or could not have made such large contributions absent the transfers from Whittemore. The recipients generally testified that Whittemore had characterized the funds as " bonuses" or " gifts" and that he simultaneously encouraged them to make contributions to Senator Reid's campaign, sometimes explicitly stating that the funds were intended to cover the cost of the contribution.

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

On April 13, two days before Senator Reid's campaign was to report its quarterly fundraising information to the Federal Election Commission, Whittemore sent Perry an email with the subject heading " contribution list," along with a new spreadsheet that listed the same thirty-three donors. On this spreadsheet, however, only four of the donors were listed as Wingfield employees. Several were now identified as employees of Wingfield subsidiaries whose names did not signal any relationship to Wingfield. Roxanne Doyle had previously been identified as " Executive Assistant, Wingfield Nevada Group." She was now identified as an employee of Harvey Whittemore Attorney at Law. Christina Mamer had been identified as " VP of Human Resources, Wingfield Nevada Group." She was now identified as an employee of Whittemore-Seeno Company; ...


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