Tuesday, June 15, 2010
Court Revives Felony Charges Against Attorney Pierce O’Donnell
Ninth Circuit Panel Reverses Judge Otero, Says Campaign Law Bans Donating in Name of Another
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reinstated two felony charges against prominent Los Angeles attorney Pierce O’Donnell, accused of using relatives and employees as conduits for illegal donations to the first presidential campaign of then-Sen. John Edwards.
The panel reversed a ruling by U.S. District Judge James Otero of the Central District of California, who agreed with O’Donnell that 2 U.S. Sec. 441f, part of the Federal Election Campaigns Act, only prohibits the making of contributions using a false name.
Judge Raymond Fisher, writing for the Ninth Circuit, said the only reasonable interpretation of the statute was the one argued by prosecutors—that it is illegal not only to make donations directly in someone else’s name, but also to advance funds for another person to donate or to promise to reimburse the nominative donor’s contributions.
The section reads:
“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.”
The indictment charged that in 2003, O’Donnell arranged with 13 individuals to have those persons give $2,000 each to Edwards’s bid for the 2004 Democratic presidential nomination, with O’Donnell advancing the funds or promising reimbursement. O’Donnell claimed that Sec. 441f was not violated because those persons gave the money to the campaign, using their own names.
Fisher cited the dictionary definition of “contribute”— “[t]o give or supply in common with others; give to a common fund or for a common purpose.” Based on that definition, the judge reasoned, “it is clear that O’Donnell gave the money at issue for the common purpose of advancing the Edwards campaign.”
The judge elaborated:
“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’ connotes 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. Section 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 intermediary’s essentially ministerial role to the substance of the transaction.”
Senior Judges Alfred T. Goodwin and William C. Canby Jr. joined in the opinion.
O’Donnell, a onetime congressional candidate who has been a fixture of liberal Democratic politics as well as a highly successful business litigator, was represented by George J. Terwilliger III, who served as deputy U.S. attorney general under George H.W. Bush and now heads the White Collar Practice Group at White & Case in Washington, D.C.
Terwilliger issued a statement saying the decision was being reviewed and that the U.S. Supreme Court might be asked to hear the case. O’Donnell’s view was also supported by a conservative group, the Virginia-based American Civil Rights Union, as amicus.
Assistant U.S. Attorney Erik M. Silber of Los Angeles argued for the government. Amicus briefs supporting prosecutors’ interpretation were filed by the Federal Election Commission, the Campaign Legal Center, Democracy 21, and Citizens for Responsibility and Ethics in Washington.
In an earlier case, O’Donnell was ordered by Los Angeles Superior Court Judge Alex Ricciardulli to pay $155,200 in fines and penalties, serve three years probation, and refrain from political fundraising for three years after pleading no contest to California Political Reform Act violations.
The sentence was imposed pursuant to plea negotiations after O’Donnell was accused of making contributions to then-Los Angeles Mayor James K. Hahn under false names during 2000 and 2001.
Current Mayor Antonio Villaraigosa, who lost to Hahn in the 2001 election but unseated him four years later, cited the O’Donnell case in his campaign last year as one of several ethical issues tied to Hahn. Hahn, who was not charged with wrongdoing and is now a Los Angeles Superior Court judge, said he had no inkling of any irregularities in connection with the donations.
A disciplinary complaint based on the misdemeanor conviction remains pending, State Bar records show.
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