In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2652
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C ALVIN B OENDER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 186-1—Robert M. Dow, Judge.
A RGUED F EBRUARY 11, 2011—D ECIDED A UGUST 19, 2011
Before M ANION, E VANS , and H AMILTON, Circuit Judges.
M ANION, Circuit Judge. Over the course of 2004, Calvin
Boender spent approximately $38,000 on home repairs
for Isaac Carothers, a Chicago Alderman and crucial
player in Boender’s attempt to have certain industrial
Circuit Judge Evans died on August 10, 2011, and did not
participate in the decision of this case, which is being resolved
by a quorum of the panel under 28 U.S.C. § 46(d).
2 No. 10-2652
property rezoned for commercial and residential develop-
ment. Boender also convinced a couple of business as-
sociates to donate, at his expense, to Carothers’s aunt’s
congressional campaign. And when the government
investigated the earlier events, Boender fabricated an
invoice for the home repairs, purportedly sent from his
general contractor to Carothers. As a result, Boender
was indicted, tried, and convicted of bribing a local
official, exceeding federal campaign contribution limits
through straw-man donations, and endeavoring to
obstruct justice. He appeals aspects of all his convictions.
We affirm.
I. B ACKGROUND
A. The Galewood Yards Rezoning
In 2000, Boender purchased a 50-acre parcel in north-
west Chicago’s Armitage Industrial Corridor. The prop-
erty, known as Galewood Yards, was zoned for manu-
facturing use and largely undeveloped. For four years,
Union Pacific Railroad leased all, and then part, of the
property. Things changed in early 2004 when Union
Pacific left. Boender began searching for other uses
for the land, and eventually decided to build a full-
service retail and residential community. But the City of
Chicago’s Department of Planning and Development
had other plans for the property and, at about the
same time, was attempting to designate the entire indus-
trial corridor a Planned Manufacturing District (PMD).
This “zoning overlay” would lock in the manufacturing
designation for the property, making it very difficult
to change the zoning once the PMD was in place.
No. 10-2652 3
Local politics being what they are, neither change was
likely to succeed without the support of the local alder-
man. Mindful of this reality, Boender attempted through-
out 2004 to cultivate the support of Carothers, the alder-
man whose ward covered the largest part of
Galewood Yards. In March, Boender and his wife each
contributed the maximum $2,000 to the congressional
campaign of Carothers’s aunt, Anita-Rivkin Carothers.
Around the same time, he also asked two other
associates to contribute to the campaign, promising to
reimburse them for the donations. Both contributed
$2,000; Boender wrote one of them a check for $4,000
to reimburse him and have him write a check to the other.
In June, Boender hired Stanley Walczak, a general
contractor with whom he had previously worked, to
paint various parts of Alderman Carothers’s house.
Boender arranged to pay for the work. When Boender
learned of the Department’s plan to establish a PMD that
included Galewood Yards, he was “irate” and told a
Department representative that he did not need to deal
with her because “he had made a deal with the alder-
man.” And when the same representative spoke to
Carothers about the plan, the alderman responded
that “he was going to do what he wanted to do with
the land in his ward and [she] was not to discuss it
with anybody.” Nevertheless, the mayor approved
the Department’s plan. Early in July, Boender and
Carothers met with the Department to discuss the future
of Galewood Yards and advocate rezoning the property
for residential and retail use, but the Department re-
mained opposed.
4 No. 10-2652
While painting Carothers’s house in July, Walczak’s
crew discovered that the windows were rotting. Carothers
selected expensive windows, and Boender authorized
Walczak to install 31 windows, telling him that Carothers
had “helped him a great deal with changing the zoning
of Galewood Yards.” Boender paid for the windows
with a check for $11,252 written from one of his com-
panies. In August, Boender also received an offer from
Kerasotes Theatres to purchase 10 acres of Galewood
Yards for approximately $4.8 million, contingent on a
zoning change to allow for commercial use. That same
month, Alderman Carothers gave an interview to the
Chicago Sun-Times, at Boender’s request, speaking in
favor of rezoning Galewood Yards. At about the same
time, Carothers asked Walczak to replace several doors
and perform some other interior repair work in his
house. Boender told Walczak to “Go ahead and do it. The
guy is worth it.”
In September, Boender filed an application for a zoning
change with the City Council. Two weeks later, he paid
$12,800 for two air conditioning units for Carothers’s
home. Shortly after that, Boender authorized Walczak
to do additional work necessary to install the units, ex-
plaining that the alderman “had helped him a lot with
the change of zoning” and “went so far as to stand up
to Mayor Daley.” In October, Boender paid $13,350 for
this work. All told, Boender paid approximately $38,000
for repairs and improvements to Carothers’s home.
Although the home repairs were complete in October,
the matter of the Galewood Yards zoning was still open.
No. 10-2652 5
Unable to proceed with the PMD designation of Galewood
Yards without the support of Carothers, the City agreed
to a compromise. In 2005, it helped secure an industrial
use for half of the property and in exchange agreed to
support the rezoning of the other half of the property
for commercial and residential use. Carothers sent
the Department an official letter of support for the com-
promise in February 2006 and in March twice advocated
rezoning Galewood Yards at City Council hearings.
In accordance with the compromise, Carothers sup-
ported the ordinance rezoning Galewood Yards, and it
passed the City Council on March 29.
B. The Fabricated Invoice
A year later, in August 2007, Boender and Walczak
received grand jury subpoenas. They met several times
to get their stories straight. After discussing different
options, they settled on a story that Walczak had initially
billed Carothers but when Carothers failed to pay,
Boender felt obliged to pay the bill because he had given
Walczak the job. In January 2008, the government issued
more grand jury subpoenas to Boender’s companies,
including those from which the checks for Carothers’s
home repairs were written. Boender then asked a
business partner how much had been spent on the
home repairs; when he learned the total amount, Boender
stated that he “wish[ed] we had sent an invoice out to
the alderman for the work.” He then fabricated an
invoice for $38,000, dated September 8, 2004, and sup-
posedly from Historic Homes, Ltd., a defunct company
he had previously owned.
6 No. 10-2652
In late February, Boender gave the fake invoice to his
real estate attorney, Michael O’Connor, informing him
that the invoice was covered by the subpoena and that
he wanted to produce it to the government. O’Connor’s
only role was to forward Boender’s documents to
criminal defense attorney Dan Reidy, with whom
Boender and O’Connor initially met on February 25.
After the initial conversation, Reidy scheduled a
meeting with the government to discuss the case and
put Boender’s best argument forward.
During their initial conversation, Boender had told
Reidy that he had sent an invoice to Carothers for work
done in 2004. But when Reidy reviewed the invoice in
preparation for his meeting with the government, he
called Boender and expressed concern that “perhaps the
invoice hadn’t actually been sent to Mr. Carothers
because [he] noticed it was typed and that it was an
original.” He also told Boender that because Historic
Homes was not subject to a subpoena, they did not yet
have to produce it. Boender asked whether the docu-
ment would help him; when Reidy responded that “if
it was real, it helped him,” Boender assured him that it
was in fact real.
At the February 27 meeting, prosecutors told Reidy
that the invoice might not be genuine. On February 29,
however, the invoice was Bates-stamped and produced
with other responsive material. Later that day, Reidy
sent an e-mail with Boender’s authorization informing
the government that the invoice “was not prepared on
or about the September 8, 2004 date it bears and was not
sent to the named addressee.”
No. 10-2652 7
C. Criminal Proceedings
In 2009, the grand jury indicted Boender on various
charges, including: making contributions in excess of
federal limitations by soliciting and reimbursing two
donors for campaign contributions in violation of the
Federal Election Campaign Act, 2 U.S.C. §§ 441a(a)(1),
441f & 437g(d)(1)(A)(ii); corruptly giving things of value
to a local official in violation of 18 U.S.C. § 666(a)(2)
by paying for Carothers’s home repairs; and endeavoring
to obstruct justice in violation of 18 U.S.C. § 1503(a) by
asking Walczak to give a false story to the government
and fabricating and intending to produce a false invoice
in support of that story.
In February 2010, the government moved in limine
to admit testimony and evidence concerning the pro-
duction of the fabricated invoice, contending that com-
munications about document production are not privi-
leged. It also argued that any privilege that did exist was
forfeited under the crime-fraud exception, and asked the
district court to conduct, if necessary, an in camera
hearing to determine whether the exception applied.
Boender simultaneously moved to exclude any testimony
or evidence related to Reidy because it was protected
by the attorney-client privilege. In response, the district
court held an in camera hearing to resolve the issue. It
directed Reidy to appear and ruled that both Boender
and the government could attend the hearing. The court
heard testimony from Reidy, Reidy’s staff, and O’Connor.
Finding sufficient evidence that the conversations at
issue were “not for the purpose of obtaining legal advice
8 No. 10-2652
but for the purpose of perpetrating a crime in connection
with the grand jury investigation,” and that Boender used
his attorneys “as ‘front men’ in a scheme to subvert the
judicial process,” the court granted the government’s
motion to admit the evidence.
Over the course of a six-day trial, the jury heard testi-
mony from numerous witnesses, including Boender’s
partner and his bookkeeper, from Walczak, from both
individuals who made campaign contributions at his di-
rection, from city officials, and from attorneys O’Connor
and Reidy. The jury convicted Boender on all counts.
After rejecting Boender’s post-trial motions for judg-
ment of acquittal and a new trial, the district court sen-
tenced him to a term of 46 months’ imprisonment.
II. L AW & A NALYSIS
On appeal, Boender challenges the district court’s
denial of his post-trial motions. Specifically, Boender
attacks the district court’s construction of the statutes
underlying his felony conviction under 18 U.S.C. § 666
and his misdemeanor conviction under 2 U.S.C. § 441f.
He also challenges his conviction under 18 U.S.C. § 1503
on the grounds that the district court erred in admitting
attorney-client privileged communications under the
crime-fraud exception. We review de novo a district
court’s ruling on a Federal Rule of Criminal Procedure 29
motion for a judgment of acquittal, but we view the
evidence in the light most favorable to the prosecution
and ask whether any rational trier of fact could have
found the essential elements of a crime beyond a reason-
No. 10-2652 9
able doubt. United States v. Doody, 600 F.3d 752, 754 (7th
Cir. 2010). We review a district court’s denial of a
motion for a new trial under Rule 33 for an abuse of
discretion. United States v. Taylor, 600 F.3d 863, 869 (7th
Cir. 2010). We address each in turn.
A. Corrupt Gifts to Alderman Carothers
First Boender challenges his conviction for violating
18 U.S.C. § 666(a)(2), which criminalizes “corruptly
giv[ing] . . . any thing of value” to any state or local
government official, “with intent to influence or re-
ward” that official. Boender contends that proving a
violation of § 666(a)(2) requires evidence of a specific
quid pro quo. He maintains that the evidence was insuffi-
cient to provide such a quid pro quo, and thus that he is
entitled to a judgment of acquittal. Failing that, he urges
us to remand the case for a new trial because the jury
was not instructed that the government needed to prove
this element of the crime beyond a reasonable doubt.
The biggest obstacle to Boender’s argument is that we
long ago held that a specific quid pro quo is not an
element of § 666(a)(2). United States v. Agostino, 132 F.3d
1183, 1190 (7th Cir. 1997). And more recently we held a
quid pro quo of money is sufficient but not necessary to
violate § 666(a)(1)(B), the parallel provision criminalizing
the solicitation and acceptance of bribes and rewards.
United States v. Gee, 432 F.3d 713, 714 (7th Cir. 2005).
From these cases, it is clear that our circuit, like most
others, does not require a specific quid pro quo and that a
10 No. 10-2652
jury instruction suggesting such a requirement would
be incorrect as a matter of law.
Boender seeks to overcome the obstacle of circuit prece-
dent by drawing a parallel between § 666(a)(2) and the
prohibition on bribery of federal officials, 18 U.S.C.
§ 201(b), which does require proof of a specific quid pro
quo. United States v. Sun-Diamond Growers of Cal., 526
U.S. 398, 404 (1999). If this premise were correct and the
two statutes parallel, this might indeed be cause for us
to revisit Agostino (which was decided before Sun-Dia-
mond) and Gee (which did not discuss the effect of Sun-
Diamond).
But Boender’s premise is false: while parallel in some
respects, the two statutes differ in the provisions central
to Boender’s argument. Whereas § 201(b) makes it a
crime to “corruptly give[], offer[] or promise[] anything
of value to any public official . . . with intent to in-
fluence any official act,” § 666(a)(2) criminalizes corrupt
giving “with intent to influence or reward” a state or local
official. Further, § 201(b) is complemented by § 201(c),
which trades a broader reach—criminalizing any gift
given “for or because of any official act performed or
to be performed,” § 201(c)(1)(A)—for a less severe
statutory maximum of two, rather than fifteen, years’
imprisonment. Section 666(a)(2) has and needs no such
parallel: by its plain text, it already covers both bribes
and rewards.
Moreover, Boender’s parallel is undermined by Sun-
Diamond itself. There, the Supreme Court distinguished
between bribes, rewards, and other gratuities. The bribery
provision, § 201(b), covers only bribery and requires a
No. 10-2652 11
specific quid pro quo. Sun-Diamond, 526 U.S. at 404. The
“illegal gratuity” provision, § 201(c), on the other hand,
requires only the identification of a specific official act
“for or because of which” a gift was given. Id. at 406.
Tellingly, the example of an illegal gratuity that the
Court cited was “a reward for some future act that
the public official will take (and may already have deter-
mined to take), or for a past act that he has already
taken.” Id. at 405. Section § 666(a)(2), however, crim-
inalizes both bribes and rewards in the same section. If
the Supreme Court’s construction of § 201 in Sun-
Diamond tells us anything about § 666(a)(2), it is what
we said in Gee: “A quid pro quo of money for a specific
legislative act is sufficient to violate [§ 666], but it is
not necessary.” 432 F.3d at 714.
Absent any reasons to reconsider our precedent—and
indeed in light of the clear statutory text—we conclude
that the government was not required to establish a
specific quid pro quo of money in exchange for a legisla-
tive act. Because they are both premised on his flawed
construction of § 666(a)(2), Boender’s challenges to the
sufficiency of the evidence and the adequacy of the jury
instructions necessarily fail.
B. Obstruction of Justice
Boender next challenges his conviction for obstruction
of justice under 18 U.S.C. § 1503, claiming that it was
based on inadmissible attorney-client privileged com-
munications. Here, he argues that the district court erred
12 No. 10-2652
in admitting testimony from his former defense attorney
based on the crime-fraud exception to the attorney-
client privilege. In light of this error, which he claims
infected the entire prosecution, he asks us to remand
the case for a new trial. We review a district court’s
application of the crime-fraud exception for an abuse
of discretion. United States v. BDO Seidman, LLP, 492
F.3d 806, 818 (7th Cir. 2007).
The crime-fraud exception helps to ensure that the
attorney-client privilege does not protect communica-
tions made “in furtherance of a crime or fraud.” United
States v. Zolin, 491 U.S. 554, 563 (1986); BDO Seidman,
492 F.3d at 818. To establish the crime-fraud exception,
and thus defeat the privilege, the government must
“present prima facie evidence that gives color to the
charge by showing some foundation in fact.” BDO Seidman,
492 F.3d at 818. Such evidence then allows the district
court to require the defendant “to come forward with
an explanation for the evidence offered against [the
privilege].” Id. The district court then exercises its discre-
tion in accepting or rejecting the proffered explanation.
The court may, if necessary, examine the privileged
communications themselves to determine whether they
further a crime or fraud, so long as there is a “showing
of a factual basis adequate to support a good faith
belief by a reasonable person that in camera review of the
materials may reveal evidence to establish the claim that
the crime-fraud exception applies.” Zolin, 491 U.S. at 572.
Boender challenges the procedures the district court
followed in deciding that the crime-fraud exception
No. 10-2652 13
applies. He argues that there was not enough evidence
to justify the district court’s decision to hold an in camera
hearing in the first place. And he attacks the manner
in which that hearing was conducted, arguing that the
district court should not have allowed the government
to attend the hearing.1
We begin with the district court’s decision to hold
an in camera hearing to receive testimony related to the
crime-fraud exception. Boender’s argument on this first
point is difficult to follow—he appears to conflate the
evidence required to establish a prima facie case sup-
porting the crime-fraud exception with the evidence
required to justify in camera review. The rule allowing
for in camera review does not presuppose any particular
quantum of evidence establishing the appropriateness
of the exception itself, merely enough evidence to
support a “good faith belief by a reasonable person” that
1
He also argues that the government should not have been
allowed to cross-examine his real estate attorney, Michael
O’Connor, without first demonstrating some basis for
believing that communications with O’Connor were in further-
ance of a crime or fraud. But the only questions asked of
O’Connor during the government’s very brief cross-examina-
tion at the hearing involved the turning over of documents to
a third-party and as such were not protected by the attorney-
client privilege in the first place. United States v. Lawless, 709
F.2d 485, 487 (7th Cir. 1983). (“When information is transmitted
to an attorney with the intent that the information will be
transmitted to a third party . . . , such information is not confi-
dential.”)
14 No. 10-2652
such review may reveal evidence establishing the excep-
tion. Id. In other words, would in camera examination
of Boender’s defense attorney answer open questions
regarding whether the attorney-client communications
were made in furtherance of an endeavor to obstruct
justice?
The answer to that question is clearly yes. Boender’s
argument to the contrary ignores a substantial amount
of evidence. Specifically, before the hearing the govern-
ment had evidence that Boender expressed a wish that
he had invoiced Carothers back in 2004; that his book-
keeper had not prepared such an invoice; that he had
discussed the existence of such an invoice with his
defense attorney just before his attorney met with the
prosecutor; and that his defense attorney had produced
an apparently fake invoice, backdated to September 8,
2004, and sent by a defunct company. The district court
had ample reason to believe that the missing pieces to
the puzzle—how the document got into the defense at-
torney’s hands in the first place and whether Boender
intended the document to be discussed with and
produced to the government—could only be found in
the testimony of Boender’s attorneys. The district court
was justified in holding an in camera hearing.
Next, we turn to Boender’s argument that the district
court erred by allowing the government to attend the
in camera hearing and cross-examine his attorneys.
He contends that the Supreme Court at least implicitly
condemned this practice when it approved in camera
review of privileged communications in Zolin. In Zolin,
No. 10-2652 15
the Internal Revenue Service had sought documents and
audio tapes that included potentially privileged communi-
cations. While it allowed in camera review subject to
the threshold finding described above, it noted that this
placed a considerable burden on a district court that
might have to “evaluate large evidentiary records without
open adversarial guidance of the parties.” 491 U.S. at 571
(emphasis added). He argues that we should take the
Supreme Court’s hint and, by extension, prohibit ad-
versarial proceedings altogether. Further, although he
points to no authority establishing that an in camera
hearing must exclude the government, he argues that
the purpose of considering the potentially privileged
communications in camera is to shield confidential com-
munications from the government as well as the public.
For its part, the government points out that Zolin
itself did nothing to mandate the exclusion of one or
both parties from the in camera review of potentially
privileged evidence. The government tries to shift the
focus from the risks of government intrusion into con-
fidential attorney-client communications to the complica-
tions of ex parte proceedings. It argues that the Court’s
unease at giving district courts carte blanche for in camera
review stems, at least in part, from the potential burden
that an ex parte, non-adversarial setting would place on
the courts. And it notes that ex parte proceedings are
generally disfavored in our adversarial system: they
are “the exception rather than the rule.” United States v.
Jordan, 544 F.3d 656, 665 (6th Cir. 2008). According to
the government, the use of adversarial proceedings in
this and similar situations mitigates, rather than compli-
16 No. 10-2652
cates, Zolin’s concern with in camera review. Ultimately,
the government argues, the determination of whether or
not the facts warrant an adversarial proceeding to deter-
mine whether the crime-fraud exception applies should
be left to the district court’s discretion.
We find the government’s argument persuasive. As an
initial matter, we do not read Zolin to suggest that ad-
versarial proceedings to determine the existence of the
crime-fraud exception are always inappropriate. That
case did not involve the live examination of an attorney,
merely the in camera review of documents containing
potentially privileged communications, and thus the
Court had no reason to consider whether the presence
of the government would be appropriate. When it listed
the burden placed on district courts by in camera review
without the benefit of adversarial guidance, it addressed
the situation in that particular case; it did not prescribe
a general rule.
Further, flatly disallowing the use of in camera ad-
versarial proceedings in crime-fraud exception cases
would run counter to the overall approach of Zolin,
which was to allow greater flexibility for district courts
to balance the need to safeguard the privilege with
the need to prevent abuse. 491 U.S. at 570-71 (analogizing
to the disclosure of military secrets and quoting United
States v. Reynolds, 345 U.S. 1, 8 (1953)). The standard the
Court announced was deliberately flexible. It simply
held that the district court must require an adequate
factual basis to support a belief that in camera review
may help establish whether the crime-fraud exception
exists. Id. at 572.
No. 10-2652 17
Similarly in this case, we need not go so far as to hold
that a district court may always hold adversarial pro-
ceedings to help determine whether the crime-fraud ex-
ception applies. Some situations may be more or less
appropriate for adversarial hearings. Where the disputed
communications are contained in documents, for ex-
ample, the best course may often be review by the
judge alone in camera. Where the source of the disputed
evidence is live testimony, however, it would be most
unusual for the judge simply to invite the witness into
chambers for a private interrogation session. If a live
examination of the potential witness is desired,2 the
choice is between an ex parte proceeding or an ad-
versarial proceeding. Although district courts may
conduct crime-fraud exception hearings ex parte where
the circumstances demand it,3 such proceedings are
contrary to the adversarial nature of our judicial system.
2
We do not suggest that direct examination will always be
necessary or desirable. It is easy to imagine situations where
something in the nature of a set of interrogatories or a detailed
proffer from the potential witness might suffice. What is
important, however, is that it is within the discretion of the
district court how to proceed once it determines that
in camera review is justified and appropriate.
3
The government points out that courts allow prosecutors to
present evidence, even testimony, ex parte where the need for
secrecy excludes the subject of the investigation, such as when
seeking to apply the exception to permit testimony during
a grand jury investigation. See, e.g., In re Impounded, 241 F.3d
308, 317-18 n.9 (3d Cir. 2001).
18 No. 10-2652
So a presumption against using ex parte proceedings
should be a factor weighing in favor of adversarial pro-
ceedings when they occur.
Another factor that the district court should consider
(as it did here) is whether an ex parte proceeding would
be more or less efficient than an adversarial proceeding.
In a case such as this, where the question is whether the
government should be allowed to call a former attorney
to testify, it may not be practical to determine whether
the subjects of potential testimony are privileged with-
out a preview of the government’s examination. As the
district court here realized, the most sensible manner
of proceeding may be to allow the government to ques-
tion the witness in camera. This preserves the claimed
privilege and allows the court to decide whether the crime-
fraud exception applies to the testimony elicited by the
government.
Finally, we note that Boender’s primary concern is
that the privilege is meant to shield confidential com-
munications from the government as well as the public.
Depending on the situation, this concern will vary with
each application. If the government were conducting
an investigation (as in Zolin), Boender might be justifiably
concerned with the practical effect of the information
the government gathers from in camera testimony. Pre-
liminary evidentiary matters, such as this attempt
to admit testimony about potentially privileged com-
munications about which the government is already
aware, do not present the same risks. The defendant
has already been indicted and the only further use
No. 10-2652 19
the government intends for the testimony is its presenta-
tion before the jury—something that cannot happen if
the district court decides the privilege applies.
For these reasons, we hold that the decision of how to
structure in camera hearings is properly within the dis-
cretion of the district court. So long as the government
meets its threshold burden justifying an in camera
hearing, the district court is free to hold adversarial
hearings when it determines that the benefit of those
hearings outweighs the risk of compromising matters
legitimately subject to the attorney-client privilege. And
here, the district court did not abuse its discretion in
holding an adversarial in camera hearing to determine
the existence of the crime-fraud exception. As we noted
above, there was ample evidence to suggest that an in
camera hearing would help clarify whether the crime-
fraud exception would apply. The district court noted
the strength of the evidence the government presented
in its detailed proffer, but rather than decide whether
the crime-fraud exception applied on the basis of that
evidence alone, it ordered an in camera hearing. This
is not a case of the government fishing for clues amid
otherwise privileged information; rather, the purpose
was to confirm what was strongly suggested by the
evidence, that the crime-fraud exception would apply.
Moreover, when Boender’s attorney objected to the pres-
ence of the government, the judge explained that he
did not think an ex parte proceeding would be as useful
nor that he would be able to resolve the matter without
an adversarial hearing. Finally, the risk of misuse of
privileged information was virtually nill: there was
20 No. 10-2652
already compelling evidence that Reidy’s testimony
was not privileged, and the court reasonably concluded
that sealing the transcript of the hearing and ordering the
government not to use anything that is privileged would
“obviate any possible prejudice to the defendant.”
Finally, for completeness, we note that Boender at
times appears to advance a third argument: even after
the district court heard Reidy’s testimony at the in
camera hearing, there was insufficient evidence to
establish a prima facie case that the initial conversa-
tion was in furtherance of a crime. 4 He argues that what
occurred at that meeting was at most “anticipatory”
obstruction of justice: no decisions were made at that
point on whether to turn over the fake invoice, and the
discussions of the invoice were purely “hypothetical.” Not
only is this argument virtually undeveloped, it is a non-
starter. According to Reidy, he and Boender discussed
Reidy meeting with the government to present Boender
in the most favorable light, as an extortion victim
rather than a criminal, and thus improve Boender’s
4
Whether Boender is in fact attempting to develop this argu-
ment is unclear because his briefs appear to confuse the re-
quirement that non-privileged evidence justifies “a reasonable
belief that in camera review may yield evidence” to establish
the crime-fraud exception’s applicability, and the prima facie
case the government must make to support the exception. It
is not entirely clear whether Boender contends that the testi-
mony at the in camera hearing was insufficient to justify the
exception, but we construe the briefs broadly for the sake
of completeness.
No. 10-2652 21
situation with the government. They spent considerable
time going over the facts of the case, so that Reidy could
put forward the best argument for this position. In this
context, Boender told Reidy that Carothers had been sent
an invoice for the home repairs. On the morning of the
meeting with the government, and after he had reviewed
the original invoice, Reidy spoke with Boender and
expressed concern over whether the invoice had actually
been sent to Carothers. Boender assured Reidy that it
had been sent. Boender meant for Reidy to communicate
his false story, including the existence of the invoice, to
the government. Whether or not Boender actually in-
tended, or agreed, that Reidy produce the invoice
itself is irrelevant. The government’s proffer gave more
than enough “color to the charge” that Boender’s com-
munications with Reidy regarding the existence and
authenticity of the invoice were in furtherance of his
endeavor to obstruct justice by conveying false infor-
mation to the government and influencing the
ongoing grand-jury investigation. See BDO Seidman, 492
F.3d at 818.
C. Campaign Contributions
Boender’s final challenge is to his misdemeanor con-
victions under 2 U.S.C. § 441f for soliciting and then
reimbursing contributions to Anita Rivkin-Carothers’s
congressional campaign. He argues that § 441f prohibits
reimbursement of campaign contributions, but only
“false name” contributions, i.e., those in which a person
donates directly to a campaign while representing
22 No. 10-2652
that the donation is in fact from another person. The
government responds that the statute also proscribes
what it variably terms “straw man,” “reimbursement,”
or “conduit” contributions, in which one solicits another
to deliver funds to a campaign, and either advances
or promises to reimburse the expenditure.
The statute at issue provides that “[n]o person shall
make a contribution in the name of another person or
knowingly permit his name to be used to effect such a
contribution.” 2 U.S.C. § 441f. Boender’s argument rests
primarily on the premise that the person who delivers
the money “makes” the campaign contribution, rather
than the person who solicits and reimburses the dona-
tion. From this, he argues that the plain language of § 441f
applies only when the person who actually delivers
the funds from his own account represents that the dona-
tion is in fact from another person. Boender adds that
courts generally presume that where Congress uses
particular language in one section of a statute and omits
it in others, it “acts intentionally and purposefully in
the disparate inclusion and exclusion,” Russello v. United
States, 464 U.S. 16, 23 (1983); see also Barnhart v. Sigmon
Coal Co., 534 U.S. 438, 452 (2002). He compares § 441f to
the limit on aggregate contributions to a political can-
didate during a calendar year in § 441a, stressing that
§ 441a defines “contribution” (for purposes of that
section only) to include “all contributions made by a
person, either directly or indirectly . . . including contribu-
tions which are in any way earmarked or otherwise
directed through an intermediary or conduit,” while
§ 441f contains no reference to indirect contributions,
No. 10-2652 23
intermediaries, or conduits. Boender argues that this
distinction shows that § 441f should be read to exclude
indirect or conduit contributions from its scope.
We disagree, and today we join the Ninth Circuit in
holding that § 441f unambiguously proscribes straw man,
as well as false name, contributions. See United States
v. O’Donnell, 608 F.3d 546 (9th Cir. 2010). First, Boender’s
textual argument that only the person who actually
transmits funds to a campaign makes the contribution
flies in the face of the dictionary and ordinary usage of the
word “contribution.” See id. at 550. To “make a contribu-
tion” is of course to “contribute.” See Bryan A. Garner, A
Dictionary of Modern Legal Usage 123 (1995) (“Though
long neglected in books about writing, buried verbs
ought to be a sworn enemy of every serious writer.”).
And to “contribute” is to “give to a common supply,
fund, etc.”; ordinarily, when we speak of someone
giving a gift, we consider the giver to be the source of
the gift, not any intermediary who simply conveys the
gift from the donor to the donee. See O’Donnell, 608 F.3d
at 550.
Second, Boender’s textual comparison to § 441a is
inapt. He correctly identifies what several circuits have
called the Russello presumption, that when Congress
includes certain language in one provision of a statute
but excludes it in another, it generally intends the dispa-
rate inclusion and exclusion to be meaningful. Russello,
464 U.S. at 23. But while this is a general presumption,
it applies with greater strength in some cases than in
others: where the disparate provisions were “considered
simultaneously when the language raising the implication
24 No. 10-2652
was inserted,” the Supreme Court has found that the
“negative implications raised by disparate provisions are
strongest.” Lindh v. Murphy, 521 U.S. 320, 330 (1997). But
the Supreme Court has refused to apply the presumption
where the provision including particular language was
enacted several years before the less-specific provision.
See Gomez-Perez v. Potter, 553 U.S. 474, 486 (2008). This
case presents an even weaker case than Gomez-Perez
because § 441a, with its specific language, was enacted
three years after § 441f: we should not presume that the
choice of particular language by one Congress should
“declare the meaning of an earlier law” enacted by an
earlier Congress using different language. Almendarez-
Torres v. United States, 523 U.S. 224, 237 (1998); O’Donnell,
608 F.3d at 552.
Finally, while we find the meaning of § 441f unambigu-
ous based on the text itself, we note that Boender’s inter-
pretation would also undermine the purpose of the
statutory scheme of disclosure requirements of which
§ 441f forms a part by rendering it substantially
underinclusive. Straw man contributions undermine
the goal of complete and accurate disclosure of the contri-
butors who finance federal elections just as much (if
not more) than false name contributions. See O’Donnell,
608 F.3d at 554. In short, the text and purpose of § 441f
convince us that Congress unambiguously criminalized
both straw man and false name contributions.5
5
Like the Ninth Circuit in O’Donnell, we have no occasion to
consider whether § 441f criminalizes the mere reimbursement
(continued...)
No. 10-2652 25
III. C ONCLUSION
None of Boender’s challenges to his convictions suc-
ceeds. To recapitulate, the interpretations he urges for 18
U.S.C. § 666(a)(2) and 2 U.S.C. § 444f are textually uncon-
vincing and would undermine the purposes of the re-
spective statutes. And the district court did not abuse
its discretion in holding an in camera hearing on the crime-
fraud exception and allowing the government to attend.
Therefore, the district court’s judgment is A FFIRMED.
(...continued)
of campaign contributions, without an prior solicitation.
O’Donnell, 608 F.3d at 551. Nor do we address Boender’s
fatally undeveloped argument that the government’s inter-
pretation of § 441f violates the First Amendment by
criminalizing “encouraging others to make campaign con-
tributions.”
8-19-11