United States v. Whittemore

Under 2 U.S.C. § 441f, the source of conduit contributions is the proper focus of the inquiry regardless of the ownership status of the funds at the time of contribution.

F. Harvey Whittemore agreed to raise $150,000 for the 2007 reelection campaign of Senator Harry Reid. To accomplish this he distributed $145,000 in increments of $5,000 to relatives and employees, who each made a campaign contribution of the maximum allowable $4,600. A jury in district court convicted Whittemore of making excessive campaign contributions and making contributions in the name of another. Whittemore appealed, arguing that the district court erred in refusing to instruct the jury on his theory that unconditional gifts could not be conduit contributions, and that the individual contribution limits violated his free speech rights. Whittemore also challenged two evidentiary rulings: first, that the district court improperly excluded testimony of a linguistics professor regarding interpretation of the statute, and, second, that the court improperly allowed speculative testimony. The Ninth Circuit rejected this argument, holding that the law did not support Whittemore’s theory; the issue to be decided was the source of the funds regardless of the funds’ status at the time of contribution. The panel held that the jury instructions given allowed the jury to consider fully whether Whittemore had the requisite intent, and thus exclusion of Whittemore’s proffered instructions was proper. The panel determined that under Buckley v. Valeo, “contributions, as distinct from independent expenditures, may be limited.” Further, the panel held that the district court’s ruling to exclude the evidence in question was not a final order but rather was a tentative ruling that allowed Whittemore to renew the motion, which he did not do so, and that the speculative evidence had been introduced by defense counsel on cross-examination, and even if it had been allowed, it would have been harmless. AFFIRMED.