FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50296
Plaintiff-Appellant, D.C. No.
v. 2:08-cr-00872-
PIERCE O’DONNELL, SJO-1
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
January 13, 2010—Pasadena, California
Filed June 14, 2010
Before: Alfred T. Goodwin, William C. Canby, Jr., and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
8691
8694 UNITED STATES v. O’DONNELL
COUNSEL
George S. Cardona, Acting United States Attorney, Christine
C. Ewell, Assistant United States Attorney, and Erik M. Sil-
ber (argued), Assistant United States Attorney, Los Angeles,
California, for the plaintiff-appellant.
George J. Terwilliger III (argued), Daniel B. Levin, Darryl S.
Lew and Michael H. Huneke, White & Case LLP, Washing-
ton, D.C., for the defendant-appellee.
Thomasenia P. Duncan, David Kolker, Kevin Deeley, Erin
Chlopak and Steve Hajjar, Federal Election Commission,
Washington, D.C., for amicus curiae Federal Election Com-
mission.
Peter Ferrara, American Civil Rights Union, McLean, Vir-
ginia, for amicus curiae American Civil Rights Union.
J. Gerald Hebert, Paul S. Ryan and Tara Malloy, Campaign
Legal Center, Washington, D.C.; Donald J. Simon, Sonosky,
Chambers, Sachse, Endreson & Perry, LLP, Washington,
D.C.; Fred Wertheimer, Democracy 21, Washington, D.C.,
for amici curiae Campaign Legal Center and Democracy 21.
Melanie Sloan, Citizens for Responsibility and Ethics in
Washington, Washington, D.C., for amicus curiae Citizens for
Responsibility and Ethics in Washington.
UNITED STATES v. O’DONNELL 8695
OPINION
FISHER, Circuit Judge:
Federal campaign finance law says that “[n]o person shall
make a contribution in the name of another person.” 2 U.S.C.
§ 441f. We hold that this law prohibits a person from provid-
ing money to others to donate to a candidate for federal office
in their own names, when in reality they are merely “straw
donors.”
BACKGROUND
Defendant Pierce O’Donnell is alleged to have contributed
$26,000 of his money in 2003 to the Edwards for President
campaign through 13 individuals — primarily employees of
his law firm as well as some of his relatives. According to the
indictment, O’Donnell arranged for these individuals to
donate $2,000 ostensibly in their own names but with the
understanding that he would either advance them funds or
reimburse them after the donation was made. In accord with
these allegations, the grand jury charged O’Donnell with,
inter alia, contributing in the names of others in violation of
2 U.S.C. § 441f. The district court dismissed the § 441f
counts, and the government appeals. See 18 U.S.C. § 3731.
We reverse.
Congress first enacted § 441f as part of the Federal Election
Campaign Act of 1971, Pub. L. No. 92-225, 86 Stat. 3 (1972),
which was designed to regulate campaign finance by requir-
ing the disclosure of contributions and their sources. In its
present form, § 441f states: “No person shall make a contri-
bution 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 person.” 2 U.S.C. § 441f (emphasis
added); see also 11 C.F.R. § 110.4(b)(2) (applicable regula-
tions).
8696 UNITED STATES v. O’DONNELL
In 1974, Congress also enacted a new provision,
§ 441a(a)(8), relating to the reinstatement of contribution lim-
its. See Federal Election Campaign Act Amendments of 1974,
Pub. L. No. 93-443, 88 Stat. 1263 (1974). Section 441a(a)(8)
states:
For purposes of the limitations imposed by this sec-
tion, all contributions made by a person, either
directly or indirectly, on behalf of a particular candi-
date, including contributions which are in any way
earmarked or otherwise directed through an interme-
diary or conduit to such candidate, shall be treated as
contributions from such person to such candidate.
The intermediary or conduit shall report the original
source and the intended recipient of such contribu-
tion to the Commission and to the intended recipient.
2 U.S.C. § 441a(a)(8). Although O’Donnell is not charged
with violating § 441a(a)(8), it is relevant because the parties
dispute whether and how its passage should influence our
interpretation of § 441f.
STANDARD OF REVIEW
“We review de novo a district court’s decision to dismiss
an indictment based on an interpretation of a federal statute.”
United States v. Marks, 379 F.3d 1114, 1116 (9th Cir. 2004).
DISCUSSION
I.
The issue in this appeal is whether § 441f proscribes only
“false name” contributions or, as the government contends, it
also prohibits “straw donor” contributions. A false name con-
tribution is a direct contribution from A to a campaign, where
A represents that the contribution is from another person who
may be real or fictional, with or without obtaining that per-
UNITED STATES v. O’DONNELL 8697
son’s consent. A straw donor contribution is an indirect con-
tribution from A, through B, to the campaign. It occurs when
A solicits B to transmit funds to a campaign in B’s name, sub-
ject to A’s promise to advance or reimburse the funds to B.
Although employing different methods, false name and straw
donor schemes both facilitate attempts by an individual (or
campaign) to thwart disclosure requirements and contribution
limits. O’Donnell argues as a matter of statutory interpretation
that § 441f cannot apply to straw donor contributions because,
irrespective of A’s role in directing and reimbursing the
money, the straw donor B has actually made the contribution,
which is accurately reported in B’s name. We disagree.
Statutory interpretation begins with the text. See N.Y. State
Conference of Blue Cross & Blue Shield Plans v. Travelers
Ins. Co., 514 U.S. 645, 655 (1995). To put the language of
§ 441f in context, we also consider how related language is
used in § 441a(a)(8). See Robinson v. Shell Oil Co., 519 U.S.
337, 341 (1997) (“The plainness or ambiguity of statutory lan-
guage is determined by reference to the language itself, the
specific context in which that language is used, and the
broader context of the statute as a whole.”). Finally, we ana-
lyze § 441f in light of its purpose of promoting disclosure and
the broader structure of the Federal Election Campaign Act
(FECA). See Wilderness Soc’y v. U.S. Fish & Wildlife Serv.,
353 F.3d 1051, 1060 (9th Cir. 2003) (en banc) (“[T]he struc-
ture and purpose of a statute may also provide guidance in
determining the plain meaning of its provisions.”). Relying on
these tools of interpretation, we hold that § 441f unambigu-
ously applies to straw donor contributions.1
1
The only court to have squarely addressed this issue concluded that
§ 441f applies to straw donor contributions. See United States v. Boender,
___ F. Supp. 2d ___, 2010 WL 725318 (N.D. Ill. Feb. 24, 2010). Numer-
ous cases have assumed the same. See, e.g., McConnell v. FEC, 540 U.S.
93, 232 (2003), overruled on other grounds by Citizens United v. FEC,
130 S. Ct. 876, 913 (2010); United States v. Serafini, 233 F.3d 758, 763
& n.5 (3d Cir. 2000); United States v. Kanchanalak, 192 F.3d 1037, 1042
8698 UNITED STATES v. O’DONNELL
A. The Text of § 441f
[1] Section 441f provides:
No 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 person.
2 U.S.C. § 441f. Under O’Donnell’s interpretation, only the
person who personally transmits the contribution has actually
made it. Therefore, § 441f is violated only if that person pro-
vides a false name. He argues that his alleged scheme, in con-
trast, did not violate § 441f because the straw donors actually
transmitted the contributions, and they properly used their
own names.
[2] The government agrees that false name contributions
violate § 441f, but it argues that the language is sufficiently
broad to reach straw donor contributions as well. Under the
government’s interpretation, the original source of funds has
made the contribution even though it was actually transmitted
by an intermediary, and if the intermediary is named as the
source, the contribution has been made “in the name of anoth-
er.” The intermediary, in turn, having acted at the direction
and used the funds of the original source, has not made a con-
tribution, but instead has “knowingly permit[ted] his name to
be used to effect such a contribution.” There is no dispute that
the contributions here were made in the names of O’Donnell’s
intermediaries. The only question is whether such attribution
(D.C. Cir. 1999); Goland v. United States, 903 F.2d 1247, 1251-54 (9th
Cir. 1990); FEC v. Weinstein, 462 F. Supp. 243, 250 (S.D.N.Y. 1978).
O’Donnell has not pointed us to a single counterexample. These decisions
do not control our analysis, but the sheer consistency of their assumptions
at the least undermines his argument that § 441f should plainly be read
otherwise.
UNITED STATES v. O’DONNELL 8699
violated § 441f because it was O’Donnell who actually
“made” the contributions.
[3] To determine which party in a straw donor scheme
“make[s] a contribution,” we first look to the statute to under-
stand the meaning of that phrase. A contribution is statutorily
defined as “any gift . . . of money . . . made by any person
for the purpose of influencing any election for Federal office.”
2 U.S.C. § 431(8)(A)(i). The statutory definition clarifies
what purpose is required for the gifts to be covered, and there
is no dispute that the gifts here were made for the purpose of
influencing the presidential primary election. The statutory
definition, however, does not specifically address the salient
question of who made the contributions. Therefore, we look
next to the first dictionary definition of “contribute,” which is
“[t]o give or supply in common with others; give to a com-
mon fund or for a common purpose.” Am. Heritage Coll. Dic-
tionary 303 (3d ed. 2000). Applying that definition, it is clear
that O’Donnell gave the money at issue for the common pur-
pose of advancing the Edwards campaign.
[4] In ordinary usage, when Friend B delivers a gift that
was provided by Friend A, we say that it was Friend A who
gave that gift. In the context of gifts, the word “giving” con-
notes the idea of providing from one’s own resources rather
than simply conveying, and thus we refer to the original
source rather than the intermediary as the one who gave. Sec-
tion 441f must be understood on this same common sense
level. In a straw donor situation, the person who actually
transmits the money acts merely as a mechanism, whereas it
is the original source who has made the gift by arranging for
his money to finance the donation. To identify the individual
who has made the contribution, we must look past the inter-
mediary’s essentially ministerial role to the substance of the
transaction. Accordingly, the statutory language applies when
a defendant’s funds go to a campaign either directly from him
or through an intermediary. In either case, for purposes of
§ 441f, the defendant has made that contribution — and he
8700 UNITED STATES v. O’DONNELL
has violated the statute if his own name was not provided as
the source.2
O’Donnell argues that this interpretation illogically would
result in criminalizing conduct when the intermediary is later
reimbursed rather than at the time the money is delivered to
the candidate’s campaign. The concern, in other words, is that
the defendant does not actually become the source — and thus
no offense takes place — until the defendant reimburses the
intermediary, after the donation (with its attendant reporting
obligation) has already been made. Consequently, a contribu-
tion that was lawful at the time it was made would become
unlawful based on subsequent events — a temporal sequence
that seems anomalous should the language of § 441f be read
as not concerned with anything that happens after the contri-
bution is made.
We note preliminarily that this argument does not apply to
the extent that O’Donnell was alleged to have advanced
funds. When the funds are advanced rather than reimbursed,
there is no timing anomaly: O’Donnell made the contributions
at the moment they were transmitted to the campaign because
he would already have supplied the necessary funds. With
regard to reimbursed gifts, we acknowledge that the timing
objection would be troubling (perhaps even decisive) when,
for example, a defendant reimburses the contributions made
by others without any prior arrangements or understandings.
We therefore express no view on whether § 441f would apply
to that hypothetical defendant. In the present circumstances,
however, we reject O’Donnell’s view that the contribution
would not have been unlawful at the time it was made. When
2
We need not decide whether and under what circumstances the inter-
mediary should also be understood to have made a contribution, such that
the intermediary’s name must jointly be reported. We note, however, the
Federal Election Commission regulation stating that when an intermediary
exercises direction or control over a gift, the entire amount must be attri-
buted to both the original source and the intermediary. See 11 C.F.R.
§ 110.6(d).
UNITED STATES v. O’DONNELL 8701
a defendant arranges to have an intermediary deliver a gift
and promises reimbursement, the offense will at least have
begun at the moment the contribution arrives at the campaign.
Because the indictment alleges that O’Donnell then actually
followed through with the reimbursements, we need not
decide whether a subsequent failure to actually reimburse the
intermediary would negate the offense. Our holding is limited
to defendants who, as O’Donnell is alleged to have done, both
prearrange for and follow through with the reimbursement of
their intermediaries.3
[5] Considering the plain language of § 441f itself, there-
fore, we conclude that it encompasses straw donor contribu-
tions, whether accomplished through the advancement or
reimbursement of funds. Because the context in which lan-
guage is used is also relevant to plain meaning, we turn to
O’Donnell’s arguments based on § 441a(a)(8).
B. Reading § 441f in Light of § 441a(a)(8)
[6] O’Donnell argues that additional language in
§ 441a(a)(8) but not present in § 441f requires interpreting the
latter provision as having a more limited scope, an argument
the district court found persuasive. O’Donnell’s argument
focuses on two phrases in § 441a(a)(8):
For purposes of the limitations imposed by this sec-
tion, all contributions made by a person, either
directly or indirectly, on behalf of a particular candi-
date, including contributions which are in any way
earmarked or otherwise directed through an inter-
mediary or conduit to such candidate, shall be
treated as contributions from such person to such
candidate.
3
O’Donnell’s timing argument fails for an additional reason based on
§ 441a(a)(8), which we discuss in section I.B infra.
8702 UNITED STATES v. O’DONNELL
2 U.S.C. § 441a(a)(8) (emphasis added). He argues that both
of these italicized phrases would be unnecessary if the term
“contribution” already encompassed indirect gifts delivered
through an intermediary. From this language, he infers that
“contribution,” standing alone, must refer to direct contribu-
tions delivered without the use of an intermediary. Therefore,
§ 441f’s use of “make a contribution” without any reference
to intermediaries or conduits indicates that the provision is
limited to false name contributions. See Russello v. United
States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposefully in the disparate
inclusion and exclusion.” (quoting United States v. Wong Kim
Bo, 472 F.2d 720, 722 (5th Cir. 1972) (internal quotation
marks omitted) (alteration in original))).
O’Donnell’s argument is unpersuasive for two reasons.
First, Congress enacted § 441f and § 441a(a)(8) at different
times, a fact that weakens the Russello presumption. See
Gomez-Perez v. Potter, 128 S. Ct. 1931, 1940 (2008)
(explaining that the Russello presumption is “ ‘strongest’ in
those instances in which the relevant statutory provisions
were ‘considered simultaneously when the language raising
the implication was inserted’ ” (quoting Lindh v. Murphy, 521
U.S. 320, 330 (1997))). We have applied the Russello pre-
sumption in at least one case in which the two provisions
were not enacted at the same time. See United States v.
Youssef, 547 F.3d 1090, 1094-95 (9th Cir. 2008) (per curiam).
But in Youssef, the two provisions were more similar in pur-
pose and structure, and these parallels made the absence of a
particular word more telling than it otherwise would have
been. See id.; see also City of Columbus v. Ours Garage &
Wrecker Serv., Inc., 536 U.S. 424, 435-36 (2002) (“The Rus-
sello presumption . . . grows weaker with each difference in
the formulation of the provisions under inspection.”).4 And
4
In Youssef, both statutes at issue prohibited false statements to govern-
ment officials, and one included the word “materially” to modify “false”
UNITED STATES v. O’DONNELL 8703
even if the parallels were stronger, § 441f was passed three
years earlier than § 441a(a)(8), so the choice of wording in the
latter offers little insight into the meaning of the former. See
Almendarez-Torres v. United States, 523 U.S. 224, 237
(1998) (declining to interpret provisions with reference to
later enacted laws that did not, among other possibilities, “de-
clare the meaning of earlier law” or “reflect any direct focus
by Congress upon the meaning of the earlier enacted provi-
sions”).
Second, the Russello presumption applies with limited
force here because the language used in § 441f is broad rather
than specific. Section 441f does not, for example, include “di-
rectly” but omit the word “indirectly.” Nor does § 441f spec-
ify a number of covered ways to “make a contribution” while
omitting “conduit” from the list. In either of those situations,
the absence of the words used in § 441a(a)(8) could indicate
an intention to exclude their application in § 441f. But it
makes less sense to draw that inference when, as here, the
provision at issue uses broader language that encompasses the
meaning of the absent words and thus did not need to
expressly include them. See Royal Foods Co., Inc. v. RJR
Holdings, Inc., 252 F.3d 1102, 1107 n.6 (9th Cir. 2001)
(“Merely because a statute’s plain language does not specify
particular entities that fall under its definition, does not mean
that the statute is ambiguous as to all those who do fall under
it.”).
[7] The comparison to § 441a(a)(8) actually undermines
O’Donnell’s interpretation, because the language of that pro-
vision shows that indirect gifts are merely particular types of
whereas the other did not. Relying in part on Russello, we declined to read
a materiality requirement into the statute that omitted the modifier. See
Youssef, 547 F.3d at 1094-95. In this case, as we explain further in section
I.D infra, the two provisions share some overlap but otherwise are less
aligned in purpose and structure than the statutes in Youssef.
8704 UNITED STATES v. O’DONNELL
contributions, subsumed within the general concept. If Con-
gress had understood § 441a(a)(8) to reach more broadly than
§ 441f, there are several ways it could have so indicated. For
example, § 441a(a)(8) could have referred to “contributions,
which for purposes of this section include indirect gifts,” a
construction that would imply that the same word, used else-
where, should not have that expanded meaning. Similarly, the
provision could have referred to “contributions or conduit
gifts,” which would have suggested that conduit gifts are a
distinct concept for which Congress would use a distinct term.
Instead, § 441a(a)(8)’s identification of indirect or conduit
gifts as particular types of contributions reinforces our conclu-
sion that the unqualified term, standing alone, should be
accorded its full range of meaning.
Finally, our examination of § 441a(a)(8) demonstrates that
O’Donnell’s timing argument regarding § 441f proves too
much, because it would preclude liability for reimbursement
schemes under the former provision as well. Central to
O’Donnell’s argument that § 441f does not reach his conduct
is his contention that § 441a(a)(8) separately requires that
intermediaries report the original source of the funds that they
donate. He thus relies on § 441a(a)(8) to argue that his narrow
reading of § 441f would not create a loophole for straw donor
contributions. Yet both provisions are subject to the same
concern about the timing anomaly created by reimbursed
gifts. Although § 441a(a)(8) includes additional language
regarding indirect contributions, it does not specifically
acknowledge that a person who receives the original source’s
funds after transmitting a donation could still be considered
an intermediary. Thus, the language of both provisions could
be read to focus only on the moment a contribution is made,
so they would share the same supposedly anomalous feature
of being dependent on the effect of subsequent events. If we
agreed that O’Donnell’s objection warranted excluding reim-
bursement schemes from the reach of § 441f, we would have
to conclude that § 441a(a)(8)’s reference to indirect contribu-
tions similarly encompasses only funds that the original
UNITED STATES v. O’DONNELL 8705
source has advanced to intermediaries. O’Donnell himself
does not read § 441a(a)(8) in this manner, which reinforces
our earlier conclusion that § 441f covers such reimbursement
schemes so long as they have been prearranged and effectu-
ated.
C. Purpose
An examination of statutory purpose reinforces our inter-
pretation of the text. As noted earlier, Congress originally
enacted § 441f as part of the Federal Election Campaign Act
of 1971, which overall sought to regulate campaign finance
through a regime of disclosure requirements. For example, in
addition to § 441f’s prohibition, the Act required campaigns
to keep detailed information about all contributors who
donated a minimum amount and to file regular public reports.
See 2 U.S.C. §§ 432(c), 434(b) (1972). Simultaneously, the
Act eliminated the individual contribution limits that had been
in place under existing law. See 1971 FECA § 203, 86 Stat.
at 9-10 (amending 18 U.S.C. § 608). Congress believed that
full disclosure would make contribution limits unnecessary.
See S. Rep. No. 92-229, at 122 (1971).
In this light, the congressional purpose behind § 441f — to
ensure the complete and accurate disclosure of the contribu-
tors who finance federal elections — is plain. Our reading of
the statute as applying to straw donor contributions is entirely
consistent with this purpose, because such contributions
undermine transparency no less than false name contributions
do by shielding the identities of true contributors. The same
is true of our specific textual conclusion that O’Donnell made
the contributions under § 441f, because it is implausible that
Congress, in seeking to promote transparency, would have
understood the relevant contributor to be the intermediary
who merely transmitted the campaign gift.
Moreover, if § 441f were limited to false name contribu-
tions, then straw donor schemes would have been unregulated
8706 UNITED STATES v. O’DONNELL
at least until 1974, when Congress adopted § 441a(a)(8). We
think it highly unlikely that a Congress seeking to promote
disclosure, and willing to eliminate contribution limits as an
alternative means of regulating campaign finance, would have
intended to leave out straw donor contributions, which were
a recognized concern at the time. See, e.g., Alexander Heard,
The Costs of Democracy 359-60 (1960) (describing how
“[d]ummy contributors” were used both to avoid disclosure as
well as to evade contribution limits).
[8] To this reasoning, O’Donnell responds that Congress
did leave a loophole in 1971, that the loophole was contrary
to FECA’s purpose and that Congress therefore closed the
loophole by enacting § 441a(a)(8) in 1974. Thus, he contends,
the enactment of § 441a(a)(8) confirms his interpretation of
§ 441f. We disagree. Section 441a and the 1974 amendments
to FECA served primarily to reinstate contribution limits. See
1974 FECA § 101(a), 88 Stat. at 1263-64. There is nothing in
the language of § 441a(a)(8) to indicate that the provision was
directed at the disclosure concerns of § 441f. Indeed, had
Congress been concerned about a loophole in § 441f, it likely
would have amended that provision rather than enacting
§ 441a(a)(8). Moreover, although § 441a(a)(8) requires the
original source of funds to be reported, it addresses only the
intermediary’s obligations and not the principal offender in
the straw donor scheme.5 In contrast, § 441f under the govern-
ment’s interpretation properly criminalizes the conduct of
both parties involved.
5
Although § 441a(a)(8) does not place reporting obligations on the orig-
inal source, that source could violate 2 U.S.C. § 441a(a)(1)(A) by exceed-
ing the individual contribution limit. Generally, violations of § 441a
become felonies when the contributions total $25,000 during a calendar
year, in contrast to the $10,000 threshold for violations of § 441f. See 2
U.S.C. § 437g(d)(1).
UNITED STATES v. O’DONNELL 8707
D. Structure
Although we reject O’Donnell’s argument that § 441a(a)(8)
was added to close a loophole for straw donor contributions,
we acknowledge that the government’s interpretation of
§ 441f does result in an overlap in FECA’s present structure.
Both provisions appear to require that a campaign contribu-
tion from A through B be reported as a contribution from A.
The two provisions serve different purposes, however, mak-
ing the overlap unsurprising — and legally insignificant. Con-
gress enacted § 441a(a)(8) as part of its reinstatement of
contribution limits. As noted above, the provision does not
appear to be directed at § 441f’s domain of criminalizing dis-
closure violations, but rather with providing guidance on
accounting for purposes of calculating an individual’s contri-
bution totals. Given this fundamental difference in purpose,
evident from the text of the provisions as well as the context
in which they were passed, the overlap is less troublesome
than it would be if the two provisions purported to address the
same matter. Cf. TRW Inc. v. Andrews, 534 U.S. 19, 29-31
(2001) (rejecting an interpretation of a statute’s general rule
that would have rendered a listed exception superfluous,
where both provisions addressed the same issue).
***
[9] In sum, the text, purpose and structure of § 441f all
support the conclusion that the statute applies not only to false
name but also to straw donor contributions. We therefore hold
that § 441f unambiguously applies to a defendant who solicits
others to donate to a candidate for federal office in their own
names and either advances the money or promises to — and
does — reimburse them for the gifts.
That conclusion forecloses O’Donnell’s rule of lenity argu-
ment. “The rule of lenity requires ambiguous criminal laws to
be interpreted in favor of the defendants subjected to them.”
United States v. Santos, 128 S. Ct. 2020, 2025 (2008) (plural-
8708 UNITED STATES v. O’DONNELL
ity opinion). Lenity does not, however, apply in the absence
of a “grievous ambiguity,” Huddleston v. United States, 415
U.S. 814, 831 (1974), that requires us to “guess as to what
Congress intended,” Ladner v. United States, 358 U.S. 169,
178 (1958). We are sensitive to the need to require fair notice
to defendants, but here the statutory language, structure and
purpose do not leave the provision’s meaning “genuinely in
doubt.” United States v. Otherson, 637 F.2d 1276, 1285 (9th
Cir. 1980); see also Barber v. Thomas, 560 U.S. ___, No. 09-
5201, slip op. at 13-14 (2010). The fair notice concern seems
especially inapposite in this case, because O’Donnell seeks to
create a textually dubious loophole for himself by reading the
two provisions to criminalize only the behavior of the accom-
plices who acted at his direction.
In any event, O’Donnell has at most shown that a narrower
interpretation of § 441f is conceivable, but that is insufficient
to establish ambiguity. See Smith v. United States, 508 U.S.
223, 239 (1993) (“The mere possibility of articulating a nar-
rower construction . . . does not by itself make the rule of len-
ity applicable.”); Otherson, 637 F.2d at 1285 (“[D]isputed
words or phrases in criminal laws have in many instances
been interpreted broadly, defeating defendants’ claims.” (cit-
ing Huddleston, 415 U.S. 814; United States v. Cook, 384
U.S. 257 (1966))). Thus, the rule of lenity does not apply.
II.
[10] Separately, O’Donnell argues that even if § 441f
applies to straw donor contributions, the indictment against
him is defective. “An indictment must be specific in its
charges and necessary allegations cannot be left to inference
. . . .” Williams v. United States, 265 F.2d 214, 218 (9th Cir.
1959). Moreover, “an indictment must do more than simply
repeat the language of the criminal statute.” Russell v. United
States, 369 U.S. 749, 764 (1962). At the same time, an “in-
dictment should be read in its entirety, construed according to
common sense, and interpreted to include facts which are nec-
UNITED STATES v. O’DONNELL 8709
essarily implied.” United States v. Givens, 767 F.2d 574, 584
(9th Cir. 1985). We review the sufficiency of an indictment
de novo. United States v. Rodriguez, 360 F.3d 949, 958 (9th
Cir. 2004).
[11] O’Donnell argues that the indictment is inadequate
because it charges him with reimbursing contributions made
by others rather than with making contributions himself. By
characterizing the indictment in this manner, he seeks to illus-
trate a “variance between the charged conduct and the
charged statute.” It is true that the indictment includes allega-
tions that O’Donnell reimbursed the contributions of others,
which alone might not clearly state a legal violation. But the
indictment also alleges that he “agreed to make conduit con-
tributions . . . , that is, contributions in the names of others.”
Taken together, these allegations reasonably describe reim-
bursements as the particular method used to violate the ban on
contributing in the names of others. The indictment is not
defective.
CONCLUSION
We hold that § 441f prohibits straw donor contributions, in
which a defendant solicits others to donate to a candidate for
federal office in their own names and furnishes the money for
the gift either through an advance or a prearranged reimburse-
ment. We further hold that the indictment against O’Donnell
is sufficient. Accordingly, the district court’s order dismissing
counts one and two of the indictment is reversed, and the case
is remanded.
REVERSED and REMANDED.