In the Courts

Despite these instructions, several privileged communications were recorded and listened to by several attorneys. The court found that that the government had information with which it should have identified the parties to these conversations as attorneys. Despite that information, the government represented to the supervising court that the communications were not privileged. Although the government did ultimately institute special provisions regarding one of the attorneys at issue, it did not inform the supervising court of these measures.

Ultimately, the court found that the government had unreasonably executed the warrant it had been issued. The court did, however, find that the violations did not require dismissal of the indictment because Renzi failed to show that the government's conduct was outrageous, that the conduct lead to obtaining privileged materials, and that there was some prejudice against the defendant.

In this case, the court found that the government had implemented a rule to limit the use of privileged materials. Further, many of the violations by the government were inadvertent. In addition, many of the privileged materials were not accessed by the prosecution team; there were only two instances where the government received the privileged materials and it appeared that there had been no use of the materials by the government. Thus, there was no Fifth- or Sixth-Amendment violation regarding the effective assistance of counsel.

Ninth Circuit: Campaign Finance Restrictions Outlaw 'Straw Man' Contributions

In United States v. O'Donnell, 2010 WL 2352042 (9th Cir. Jun. 14, 2010), the Ninth Circuit Court of Appeals overturned a Central District of California dismissal of an indictment of Pierce O'Donnell for violations of 2 U.S.C. ' 441f for making contributions in the name of other individuals to the Presidential campaign of John Edwards.

Pierce O'Donnell was a Los Angeles lawyer alleged to have used 13 employees of his law firm and other relatives to donate a total of $26,000 to Edwards' campaign. Each of the individuals in question donated $2,000 under his/her own name; each was either advanced the money by O'Donnell or promised and provided repayment after the donation.

The grand jury indicted O'Donnell for violations of ' 441f and the district court dismissed the indictment.

Section 441f provides: “No person shall make a contribution in the name of another personal or knowingly permit his name to be used to effect such a contribution made by one person in the name of another.” 2 USC ' 441f.

The Ninth Circuit found that ' 441f prohibited both the false-name contributions and straw man contributions (those through a third party). The court looked at the language of the statute. First, it determined that the dictionary definition of “contribute,” matched the term “to give.” It found that the defendant “gave” the money to the campaign, even where it only provided it after the contribution through reimbursement.

The court rejected the defendant's argument that the use of the terms “directly or indirectly” in a separate provision that was more recently revised indicated that ' 441f only covered only direct payments. The court acknowledged the potential for overlap between the two provisions, but noted the difference in purpose between the two provisions. The court said there was no reason to address lenity because there was no ambiguity at issue.

In the Courts and Business Crimes Hotline were written by Associate Editor Kenneth S. Clark and Matthew J. Alexander, respectively. Both are associates at Kirkland & Ellis LLP, Washington, DC.

Unreasonable Government Wiretap of Former Representative Renzi Required Suppression of Wiretap Evidence

In United States v. Renzi, 2010 WL 2267085 (D. Ariz. Jun. 4, 2010), the U.S. District Court for the District of Arizona suppressed the government's wiretap evidence in its case against Richard Renzi, a former member of the House of Representatives from Arizona's first congressional district.

Following an investigation into a land-swap deal in February 2008, Renzi was indicted on 35 counts related to land deals. During its investigation, the government had recorded and transcribed numerous telephone conversations involving Renzi and his associates, pursuant to a warrant obtained for a wiretap. The team monitoring the communications was instructed not to listen to privileged communications.

Despite these instructions, several privileged communications were recorded and listened to by several attorneys. The court found that that the government had information with which it should have identified the parties to these conversations as attorneys. Despite that information, the government represented to the supervising court that the communications were not privileged. Although the government did ultimately institute special provisions regarding one of the attorneys at issue, it did not inform the supervising court of these measures.

Ultimately, the court found that the government had unreasonably executed the warrant it had been issued. The court did, however, find that the violations did not require dismissal of the indictment because Renzi failed to show that the government's conduct was outrageous, that the conduct lead to obtaining privileged materials, and that there was some prejudice against the defendant.

In this case, the court found that the government had implemented a rule to limit the use of privileged materials. Further, many of the violations by the government were inadvertent. In addition, many of the privileged materials were not accessed by the prosecution team; there were only two instances where the government received the privileged materials and it appeared that there had been no use of the materials by the government. Thus, there was no Fifth- or Sixth-Amendment violation regarding the effective assistance of counsel.

Ninth Circuit: Campaign Finance Restrictions Outlaw 'Straw Man' Contributions

In United States v. O'Donnell, 2010 WL 2352042 (9th Cir. Jun. 14, 2010), the Ninth Circuit Court of Appeals overturned a Central District of California dismissal of an indictment of Pierce O'Donnell for violations of 2 U.S.C. ' 441f for making contributions in the name of other individuals to the Presidential campaign of John Edwards.

Pierce O'Donnell was a Los Angeles lawyer alleged to have used 13 employees of his law firm and other relatives to donate a total of $26,000 to Edwards' campaign. Each of the individuals in question donated $2,000 under his/her own name; each was either advanced the money by O'Donnell or promised and provided repayment after the donation.

The grand jury indicted O'Donnell for violations of ' 441f and the district court dismissed the indictment.

Section 441f provides: “No person shall make a contribution in the name of another personal or knowingly permit his name to be used to effect such a contribution made by one person in the name of another.” 2 USC ' 441f.

The Ninth Circuit found that ' 441f prohibited both the false-name contributions and straw man contributions (those through a third party). The court looked at the language of the statute. First, it determined that the dictionary definition of “contribute,” matched the term “to give.” It found that the defendant “gave” the money to the campaign, even where it only provided it after the contribution through reimbursement.

The court rejected the defendant's argument that the use of the terms “directly or indirectly” in a separate provision that was more recently revised indicated that ' 441f only covered only direct payments. The court acknowledged the potential for overlap between the two provisions, but noted the difference in purpose between the two provisions. The court said there was no reason to address lenity because there was no ambiguity at issue.

In the Courts and Business Crimes Hotline were written by Associate Editor Kenneth S. Clark and Matthew J. Alexander, respectively. Both are associates at Kirkland & Ellis LLP, Washington, DC.