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Case number 23-3028, United States of America versus Jesse R. Benton, a felon.

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Mr. Harper for the felon, Mr. Wining for the athlete.

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Mr. Harper, good morning.

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Good morning, Your Honors.

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May it please the Court?

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Nick Harper for Jesse Benton.

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Mr. Benton's campaign finance convictions in this case were tainted by multiple independent legal errors.

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The government obtained FICA convictions based on the erroneous legal theory that Mr. Benton intended to influence an election, a theory the government has now abandoned on appeal.

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The government also was permitted to use Mr. Benton's prior conviction as pure propensity evidence based on a limiting instruction that the government has to rewrite to try to defend in this court.

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And the government secured Sarbanes-Oxley convictions based on election reporting conduct that the statute simply does not reach.

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As the district court recognized, this was a close case.

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The jury deliberated for almost two and a half days.

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The errors here easily could have changed the outcome.

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Let me ask you about that because my clerk and I couldn't find in the record.

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That's a long time for the jury to deliberate.

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Did they ask for any recharge?

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Did they ask for any explanation?

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Not as far as I'm aware, Your Honor, but I think the fact that they deliberated for so long suggests that there were serious factual disputes at issue.

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And this goes to the first issue I'd like to talk about today, which is the FECA instructions.

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I think they were defective for failing to include an essential element of the offense.

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And that very well could have been what the jury was deliberating about for so long.

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Can you address how that's preserved?

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Because it seems to me that you agreed and co-sponsored the instruction that you're now challenging.

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So why should we even entertain this argument?

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course around as we preserve this argument, the motion to dismiss stage.

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We argued that the indictment was defective because it failed to include an essential element of the offense.

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Vaseline goes purpose to influence the federal election.

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The government argument at that stage, the district court would have had to definitively rule

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against you, but it doesn't seem that it did that.

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So I think the district court did definitively rule, and necessarily definitively rule against us, because the indictment must contain all the elements of the offense in sufficient detail to apprise the defendant of the elements of the charge.

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And the district court rejected our argument, the motion dismissed stage.

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It instead adopted the government's argument that whose purpose matters was a fact question that could be resolved by the jury.

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And the district court said, you can defer these arguments to your case in chief.

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That's at JA 94.

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I'm sorry, I just want to complete that thought, because I thought he said, there's no prejudice to you raising this later.

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He was only granting it at this stage, and you could raise it later.

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Right.

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There is no prejudice to making these arguments about whose purpose matters to the jury.

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But the jury needed to be told, as a matter of law, whose purpose is required to be shown in order to convict.

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And the jury was not told that.

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The jury was instead told by the government that- But then how did he rule definitively against you so that you were relieved of your obligation?

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to raise this again if you told you it was without prejudice to raising it again.

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He ruled definitively against us on the question of whether this Vasylenko's purpose was an element of the charge.

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He necessarily did because had it been an element of the charge, he would have had to dismiss the indictment, but he didn't do so.

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Instead, he said this question of whose purpose matters is not an element, it's a fact question that the jury can resolve.

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But what's the difference, though, between it being an element of the charge and it being required to be proved?

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I'm confused as to the distinction you're drawing.

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So the jury needed to be told specifically that Vasylenko, that the government needs to prove that Roman Vasylenko, a foreign national, intended to influence an election when he made this payment.

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And the jury was never told that.

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Instead, the jury was told in the language of the statute that government has conceded is unclear that basically any purpose.

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No, I understand your argument.

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I'm just trying to drill down on the issue preservation issue.

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And your claim is that the jury was supposed to be instructed on this.

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And you didn't have to raise it because the court previously ruled that they didn't have to be instructed on this.

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But that doesn't seem to be supported by the record because the district court didn't definitively rule.

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It just said, you can raise this later.

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But for now, I'm denying the motion to dismiss.

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So I don't see why you're relieved of your obligation to contemporaneously object at the time that the jury instructions are submitted.

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You agreed to the jury instructions that were given, and now you're challenging the same jury instructions that you co-sponsored.

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So I don't think that the district court was saying you can raise arguments about whether Vasylenko's purpose is an element of the offense, again, at the jury instruction stage.

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The district court rejected that argument.

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He said, the indictment contains all the elements of the offense.

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And our position is that neither the indictment nor the jury instructions did.

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But if it's not completely clear, then you lose, correct?

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No, I don't think that's right.

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I think, first of all, I think it is completely clear.

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I mean, you can read it, but I think it's JA 92 to 94.

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The district court says this indictment contains all the elements of the offense.

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And our fundamental submission is that neither it nor the jury instructions, which both have to have the elements, had all the elements.

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It did not say that the government needed to prove Vasylenko's purpose.

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So an indictment often doesn't have all the elements of the offense.

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So an indictment does need to have all the elements of the events.

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And the Supreme Court, going back a century, has said it not only needs to contain what the statute says, it needs to descend to the particulars.

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It needs to provide unambiguous instructions.

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I've read a lot of indictments in my time.

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Sometimes they say the defendant violated this statute, period.

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It does not have to have all the elements of the offense in an indictment.

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Well, what's your authority for that?

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Every diamond has to so every element of the Supreme Court's decision.

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I mean, going back to crookshank and that's in the 1800s, but the Supreme Court decision in United States v Russell, for example, says this specifically, and I can pull out the quote for you on on rebuttal, but I don't have it for me right now.

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But the Supreme Court has said,

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that merely parroting statutory language is not enough necessarily to make the indictment sufficient.

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It has to say the elements in unambiguous, clear terms to send to the particulars where necessary.

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And here we think it was necessary because what happened was the jury was not told whose purpose mattered under the statute.

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We think it clearly was Vasylenko's purpose.

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And because of that, the government was able to argue at closing that Mr. Benton's purpose mattered over and over.

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And I think that seriously prejudiced Mr. Benton and created a serious probability that the jury convicted based on Mr. Benton's purpose.

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And to be clear, the government is saying now that that purpose is irrelevant.

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It was irrelevant all along.

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And so I think it's quite unfair for the government to be able to urge that theory before the jury at closing and then now appeal saying that was completely irrelevant all along.

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Just one other thing on the invited error issue.

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As you've set out, the requirement would be that the district court definitively ruled on this.

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And I just wondered if you'd address on JA-93, the judge says the indictment need not define down the statutory terms of contribution and solicitation for it to be sufficient.

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Now, regardless of what the right approach is, isn't that him sort of explicitly saying, I'm not going to get into what the elements of a contribution are?

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I think that is him rejecting our argument.

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He's saying the indictment doesn't need to contain the element.

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You are saying it needs to contain.

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It does not need to define down the statutory term contribution.

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And right now, you're raising an issue about what specifically a contribution is.

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Right.

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I think that is my point, that our position is that contribution is defined to mean any payment for the purpose of an election.

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That was our argument.

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That was an element.

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It needed to be in the indictment.

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District court said, no, it doesn't.

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That's not an element that needs to be in the indictment.

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And so, you know, of course, Roy doesn't need to be in the jury instructions either.

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We didn't need to re-raise that argument at the jury instruction stage.

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In the, you know, little bit of time that I have left, I would like to turn to the specific general argument that we made.

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I think that's an independent basis for vacating the section 1519 counts.

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And I do think that this is a paradigmatic case for the application of the specific general rule.

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You have every, you know, this is an ancient principle of statutory and contract interpretation.

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two statutes here that trigger every factor that the Supreme Court has recognized as triggering the specific general rule.

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So you have the massive gap between the specificity of FICA and the generality of Section 1519.

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FICA applies specifically to election reporting, creates a comprehensive scheme for punishing it.

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Some criminal, some civil punishments, depending on how much is at issue.

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It imposes a willfulness requirement, imposes procedural requirements on the government.

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Section 1519, passed in the wake of an accounting scandal, says nothing about elections whatsoever.

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It applies to a broad range of document falsification and destruction.

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So why isn't this argument governed by Batchelder?

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So the general rule is in criminal cases, you can charge any crime where the elements are met by the facts that are presented.

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So I think that doesn't speak to this at all because that shelter held as a constitutional matter when statues do overlap.

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The government has constitutional authority to prosecute under either statute and we take no issue with that.

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What we're saying is that the threshold question is whether to statues overlap and that question that shelter did not address had no opportunity to address because the statues in that case

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Involved identical conduct felons receiving firearms.

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No one briefed the specific general rule the court had no opportunity to address it and did not address it So we're arguing about the threshold question Do the statutes overlap and we think that is governed by the government routinely charges overlapping statutes like it's just done all the time and Generally, it's permissible.

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I guess people cite Batchelder.

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So what you're proposing is extremely novel and

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So I think that is, we don't take issue with the proposition that the government generally can prosecute overlapping statutes, but I think what we're saying is this is a very unique context in which you have a specific comprehensive regime designed to govern election-related misconduct, and then you have a sweeping broad

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provision that is, you know, was designed to, you know, was enacted in the wake of an accounting scandal.

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We think in those situations where you have such a massive gap, and it's not only the gap between the specificity and generality of the statutes, it's that they completely overlap in this context.

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Every single criminal violation of FICO, willful, false report to the FEC.

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It's just that the government routinely does this.

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For example, you know, there are all these gun offenses, carrying a pistol without a license, unauthorized, whatever, possessing unregistered firearm.

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There are tons of

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charges that are often brought in conjunction with each other that very much overlap.

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And why can't they do that?

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They do it all the time.

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We think they can do that.

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We just don't think that these same factors are going to be present here.

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There's not going to be the same specificity and generality difference between the two statutes that are overlapping.

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And there's not going to be the complete overlap problem that you have when every single criminal violation of FICA is.

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So let's go to the authority that you would rely on to say that the government can't do this.

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Because I understand that you're saying one is specific and one is more general, but why can't they do that?

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It seems to me that you've relied on some cases that deal with sentencing enhancements, which is very different from charging decisions.

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Because for a sentencing enhancement, you have a set of facts.

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You're deciding which enhancement should we apply.

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Whereas charging decisions are often aggregated, overlapping, numerous charges that overlap.

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So I don't think that the cases you cite that cite sentencing enhancements are supportive.

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And then you cite cases where there's specific language in a statute that says you can charge one or not the other.

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So what is your authority for the idea that the government can't charge specific and general crimes in the same indictment?

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So we think that Busek and Simpson, which is the case I think you were referring to as being about sentencing enhancements, you know, apply beyond sentencing enhancements to overlapping criminal statutes.

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This is a cross-cutting canon of interpretation.

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We don't think it's limited sentencing enhancements.

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And in Busek and Simpson, the court said it has special application in the criminal context.

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A specific case.

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But why would the same application be relevant in both a sentencing enhancement versus a charging decision?

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Because as I mentioned, in sentencing,

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You have one set of facts, you're deciding which enhancement should we apply.

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It's one or the other, whereas in charging, it's often aggregated.

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So the Supreme Court, the reason the Supreme Court said that this canon of construction has such force in the criminal context is because of fair notice and lenity concerns.

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And I think those are even more

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heightened when you're dealing with a substantive prohibition rather than a sentencing enhancement.

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And I do think there's also the Second Circuit's decision in La Porta is directly on point here.

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Where in that case, there was a statute that specifically prohibited the use of fire to destroy government property.

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And then a broader statute that had heightened mandatory minimums that prohibited the use of fire to commit any felony, including the destruction of government property.

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The Second Circuit there held that because those statutes completely overlap, and applying the broader statute would render the specific statute a practical nullity, when the destruction of government property with fire is at issue, the government has to proceed under the narrower statute.

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And I think this is exactly the same case.

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And I think this court read an opinion that is very narrow.

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I think one potentially material difference between La Porta and just cases more generally applying this canon like Radlax is that in La Porta,

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Those were two provisions of the same statute enacted at the same time here.

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We've got FECA in the early 1970s and 30 years later a more general statute enacted or is there any case of

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with that kind of gap in time and totally distinct statutory scheme that applies the specific versus general canon in the way you'd like us to.

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So I'm not aware of a specific case with that fact pattern, but I think it actually helps us because the Supreme Court has recognized that when you have a specific comprehensive regime that's been around and guided the public for many years, as FICAs did for 30 years for the enactment of Section 1519,

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Court should be reluctant to ascribe to Congress the intent to derogate from or interfere with that scheme through a later general enactment.

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So I think that actually enhances the application of the specific general rule here as compared to one where it's in the same statute.

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Simpson and music right the court pointed to evidence in the later enacted statute it was legislative history but that's what the court relied on that explicitly said if there's already a statute out there enhancing the penalty for a firearm involved fence were not intending to displace that so that's a.

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That would be the equivalent of when Section 1519 is passed, Congress saying, we don't want to displace a statute like FICA.

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And my understanding is there's nothing equivalent to that here.

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Is that right?

[00:14:25] Speaker 02:
There's no language like that here, but I don't think the Supreme Court's cases require that language.

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Certainly, Buzic and Simpson didn't say such language was required, and the Supreme Court in its specific general rule cases more broadly hasn't said that.

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I think here, because of all the factors I mentioned,

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This is a case where you can tell from the context and from the text of the statute that they were not meant to overlap.

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If the government can prosecute Section 1519 every one of these cases and get 20 years max, it's going to do that in every case.

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And this case shows you why.

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But this is what I think this is what the combination of the distance in time and the breadth of and what is going on in Sarbanes-Oxley might be a problem for you.

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Right.

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So what happens is

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For specific reasons, Congress enacts a new broad statute with heightened penalties for all government false reporting crimes.

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And it just seems pretty logical that if that does happen to supersede FICA in this particular area, that Congress wouldn't have been bothered by that.

[00:15:20] Speaker 02:
I disagree, Your Honor.

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I think it's hard to imagine that Congress, in reacting to an accounting scandal, wouldn't have been bothered by the fact that its statute was going to make FICA's very finely reticulated enforcement scheme a practical nullity.

[00:15:32] Speaker 02:
I think that's what the Supreme Court decision in Williams says.

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I think that's just the logical inference from the context.

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I do think there is a real concern here.

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This case, the government could have gotten max penalties under FICA.

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It could have gotten

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up to five years for this violation, and it proceeded under section 1519.

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I think it's very clear why, because it's easier, as the government set its own prosecutorial manuals, it's easier to prosecute under section 1519, and they can get more penalties.

[00:15:59] Speaker 03:
I wanted to ask you about what I think is the strongest error, and unfortunately I know you weren't the trial counsel.

[00:16:09] Speaker 03:
You can't unring the bell, but this instruction 2.321 about the 404B, it sounds to me, and that's why I asked you if the jury wanted any instructions.

[00:16:27] Speaker 03:
It's almost, to me, almost incomprehensible, particularly in view of the fact that

[00:16:35] Speaker 03:
they knew he had committed that previous crime.

[00:16:42] Speaker 03:
So do you see anywhere, I mean it's either invited air or plain air, do you see any way we can reach the substance of this charge?

[00:16:54] Speaker 02:
Absolutely.

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First of all, I think we did preserve this argument because the ultimately the issue is whether the district were properly admitted this prior conviction to prove identity, which was not an issue in the case.

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And I think we oppose the government's motion eliminate on those very grounds in the district court.

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And this report overruled our objection.

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Now, this instruction was simply a form identity instruction.

[00:17:14] Speaker 02:
It was the DC, if you look at the DC format, modus operandi identity instructions, it was the form instructions.

[00:17:19] Speaker 02:
So we couldn't have objected to the specific instruction without sort of re-litigating our opposition to the government's admission of the prior conviction for identity purposes.

[00:17:29] Speaker 02:
So we preserved our objection to this instruction through our objection to the admission of the underlying conviction for this purpose.

[00:17:35] Speaker 03:
I don't see why you couldn't have lodged an objection to this.

[00:17:39] Speaker 02:
So certainly we could have lodged an objection, but we had no obligation to because this court has been clear that when the district court definitively resolves an issue pre-trial, then it is preserved at the jury instruction stage.

[00:17:52] Speaker 02:
That's what this court said in Wilson and other cases as well.

[00:17:55] Speaker 02:
But I think even if you thought plain error review applied to that question,

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then I think we still should win on this, because the government isn't even defending this as an identity instruction, which it clearly was.

[00:18:05] Speaker 02:
And it directed the jury to engage in pure propensity reasoning, had seriously prejudicial consequences for my client, which, as Your Honor mentioned, the jury deliberated for a long time there were clearly close issues, and this could have tipped the balance.

[00:18:18] Speaker 01:
Just back to preservation on this issue.

[00:18:22] Speaker 01:
There's certainly a definitive ruling that the conviction can come in for willfulness and mens rea.

[00:18:30] Speaker 01:
And then is the statement you're relying on for there being a definitive ruling that it can be used for MO purposes.

[00:18:37] Speaker 01:
The statement on 110 where it says, I think it also probably shows a certain MO.

[00:18:43] Speaker 01:
in the use of false invoices in both cases, is that the ruling or is there something else?

[00:18:47] Speaker 02:
That's correct, Your Honor.

[00:18:48] Speaker 02:
The government made this argument about MO, and the district court said in its motion to dismiss ruling that this can come in for MO purposes, and so we think that was a definitive ruling on it.

[00:18:56] Speaker 01:
I guess the obvious problem is it says probably, and it's sort of after pages of analysis on the other reasons it can come in, so how would you encourage us to view that as a definitive ruling as opposed to...

[00:19:06] Speaker 02:
I think the district court adopted the government's reasoning on that question.

[00:19:10] Speaker 02:
It went through the government's reasoning about why this comes in because it's sort of a signature crime, and it adopted that.

[00:19:15] Speaker 02:
And then the parties proceeded on that assumption throughout the rest of the litigation.

[00:19:18] Speaker 02:
I think it was pretty clear.

[00:19:19] Speaker 02:
And I think if you look at the district court's post-trial ruling, I believe the district court addressed this again and said that it had already determined this was admissible for ML purposes.

[00:19:31] Speaker 03:
I have one other question that is not in the record, I don't think.

[00:19:34] Speaker 03:
The amount of money was $100,000, and Mr. Benton gave the Republican Party whatever the committee was, $25,000.

[00:19:46] Speaker 03:
Whatever happened to the $75,000?

[00:19:48] Speaker 02:
So it's not in the record as far as I know, but I don't know exactly what happened with that money.

[00:19:54] Speaker 02:
It's possible that he kept it or he did something else that I don't know.

[00:19:56] Speaker 02:
I'm sorry.

[00:19:57] Speaker 03:
OK.

[00:19:57] Speaker 03:
We'll give you a couple of minutes in reply.

[00:19:59] Speaker ?:
Thank you.

[00:20:04] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:20:32] Speaker 00:
Connor Winn for the United States.

[00:20:34] Speaker 00:
There's a good bit of ground to potentially cover in this appeal.

[00:20:37] Speaker 00:
So I currently intend to talk about the preservation issues that have been discussed so far, the FICA issues, the Rule 404B limiting instruction, and Section 1519.

[00:20:46] Speaker 00:
But if there's anything in particular that this court would like me to talk about, I'm happy to take those questions as they come.

[00:20:53] Speaker 00:
So I think picking up on the themes of what we just heard, Mr. Benton in this case is proposing a number of novel arguments about when particular arguments are preserved below.

[00:21:04] Speaker 00:
and also about prosecutorial discretion.

[00:21:06] Speaker 00:
He pushes the boundaries on both fronts.

[00:21:10] Speaker 00:
They're novel, and they're wrong.

[00:21:13] Speaker 00:
I'll start with the FICA contribution issues.

[00:21:15] Speaker 00:
Now, Mr. Benton did not preserve his objection to the FICA contribution jury instructions in this case, which he himself proposed.

[00:21:25] Speaker 00:
Indeed, his claim is waived on that front.

[00:21:28] Speaker 00:
If you take his preservation argument to its fullest extent, then any time the district court denies a motion to dismiss based on a legal ruling, then the defendant would be relieved of any obligation to ever object to the wording or precise language used in a jury instruction that when it comes time to instruct the jury on the contours of the law.

[00:21:49] Speaker 00:
That has never been the law.

[00:21:51] Speaker 00:
In fact, federal rule of criminal procedure 30 exists specifically to inform the parties that they have an

[00:21:56] Speaker 00:
obligation to object to jury instructions when it comes time for the charging conference.

[00:22:02] Speaker 00:
But even if in some circumstances a district court's pretrial ruling could definitively resolve the issue and leave a defendant of his objection to rule, that would not be this case here.

[00:22:14] Speaker 00:
As the court's already discussed with Mr. Benton's counsel, the district court specifically said that it was denying his arguments without prejudice to his ability to re-raise them during his case in chief.

[00:22:24] Speaker 00:
Mr. Benton never did so.

[00:22:26] Speaker 00:
Instead, he joined the government in proposing the jury instructions that governed the FICA counts in this case.

[00:22:32] Speaker 00:
And then, over the government's objections, secured a defense theory of the case instruction that allowed him to make all of the arguments that he wanted to make before this jury.

[00:22:40] Speaker 00:
In fact, Mr. Benton's counsel acknowledged as much in his closing argument.

[00:22:46] Speaker 00:
Specifically, in docket number 94, you can see that Mr. Benton's counsel views

[00:22:56] Speaker 00:
himself to have received all the instructions he could possibly want on this point.

[00:23:00] Speaker 00:
The claim is waived.

[00:23:02] Speaker 00:
At the very least, it's on plain air.

[00:23:04] Speaker 00:
And whatever else might be said about the merits of Mr. Benton's novel and innovative readings of FICA and the contribution definition, there's no plain, clear, and obvious error in the statutory interpretation that was adopted here, and that eventually formed the basis for these jury instructions.

[00:23:21] Speaker 00:
That claim fails.

[00:23:23] Speaker 00:
If the court has any specific questions about the merits of the FICA contribution issue, I'm happy to talk about them, but otherwise think it makes sense to move next to Section 1519.

[00:23:32] Speaker 00:
Okay.

[00:23:35] Speaker 00:
Then in that case, moving to Section 1519.

[00:23:38] Speaker 00:
On this front, Mr. Benton seeks to upend traditional principles of prosecutorial discretion.

[00:23:44] Speaker 00:
He would have this court announce a novel ruling that the government cannot charge amongst overlapping statutes any time that it appears that multiple statutes could apply.

[00:23:54] Speaker 00:
Now granted, in this case, FICA is a complex statute, and its false reporting crime does focus specifically on false material statements made in the context of campaign finance.

[00:24:05] Speaker 00:
But the fact that there is a comprehensive statute of that kind has never been a ground for displacing the government's ability to bring charges under other applicable.

[00:24:14] Speaker 01:
I think his argument is that the unique thing happening here is that they're not just overlapping, but that your reading of 1519 renders FECA's provisions entirely superfluous.

[00:24:24] Speaker 01:
The government's never going to choose to charge under FECA.

[00:24:29] Speaker 01:
And that's essentially the government's announced position, right?

[00:24:31] Speaker 00:
Your Honor, I don't think that that is in fact correct.

[00:24:34] Speaker 00:
And let me give a couple of reasons for why that is, and then also add a couple of examples of cases where the government has in fact pursued false reporting charges as opposed to charges under 1519, since that section's enacted.

[00:24:46] Speaker 00:
So first, as to the principles.

[00:24:48] Speaker 00:
I think what's important to remember here is that the FICA false reporting crime statute contains different mens rea requirements than does a section 1519 charge.

[00:24:57] Speaker 00:
Specifically, to prove that a defendant

[00:25:01] Speaker 00:
created a false statement under FICA, the defendant is going to have to knowingly and willfully have created that false statement and had it submitted to the FEC.

[00:25:10] Speaker 00:
That is different than Section 1519, in which a defendant must act knowingly but also have a specific obstructive intent.

[00:25:19] Speaker 00:
And that mens rea that's present in 1519 is not present in FICA.

[00:25:23] Speaker 01:
So in this case, for example, what did you use additional evidence to show there was a specific intent to obstruct

[00:25:31] Speaker 01:
FEC operations than simply showing he created a false Record and submitted it the honor.

[00:25:38] Speaker 00:
I do think that that's what of evidence is in the record specifically you can look at page J a Find the exact citation for you, but you can look at page J a 3

[00:25:53] Speaker 00:
I believe it's 323.

[00:25:55] Speaker 00:
It's an email where Mr. Benton's co-conspirator and Mr. Vasylenko's translator are communicating about the size of the donation to be made by Mr. Benton.

[00:26:04] Speaker 00:
And yeah, excuse me, Your Honor, it's JA319, not 323.

[00:26:08] Speaker 00:
JA319.

[00:26:09] Speaker 00:
And in that email, Mr. Vasylenko's translator informs Mr. Weed that Mr. Vasylenko is ready and happy to make his donation.

[00:26:21] Speaker 00:
In response, Mr. Benton's co-conspirator, Douglas Weed, then responds that we're going to have to handle this quote unquote correctly.

[00:26:31] Speaker 00:
And that is because both Mr. Weed and Mr. Benton are familiar with the intricacies of FICA and campaign finance law.

[00:26:38] Speaker 00:
They understand

[00:26:39] Speaker 00:
that if Mr. Vasylenko makes a contribution to a federal political election and political committee such as the RNC, that is going to be illegal.

[00:26:48] Speaker 00:
And if they are caught doing that, they are going to be subject to criminal charges under FICA.

[00:26:53] Speaker 00:
Therefore, they need to handle the donation correctly.

[00:26:55] Speaker 00:
They need to disguise it.

[00:26:56] Speaker 00:
They need to obstruct the FEC's reporting regime.

[00:26:59] Speaker 00:
That's the only way they can get away with the crimes.

[00:27:00] Speaker 01:
So I appreciate this argument.

[00:27:01] Speaker 01:
And then assume for the moment that we think

[00:27:05] Speaker 01:
that your position basically renders FICA superfluous.

[00:27:08] Speaker 01:
I assume you still have an argument that that's just fine.

[00:27:11] Speaker 01:
And I wondered if you might spell out the reasons for that.

[00:27:16] Speaker 00:
Certainly, Your Honor.

[00:27:16] Speaker 00:
So even if this, even if Section 1519 could arguably render FICA analogous, superfluous, I think this Court has already explained in the Shaw decision that that alone wouldn't necessarily be enough to render FICA a dead letter or vice versa any statute.

[00:27:34] Speaker 00:
So SHA is a little bit different than this case in the sense that it's dealing with section 1001, the material false statements charge, which was enacted long before FICA.

[00:27:43] Speaker 00:
But then once FICA's false reporting charge is introduced into the federal code, a defendant raises an argument that I can no longer be charged under section 1001.

[00:27:54] Speaker 00:
Because if that was the case, FICA's false reporting crime would have no work to do.

[00:27:58] Speaker 00:
Once again, the penalties under Section 1001 are more significant than in FICA, and arguably it requires a lower mensuea than does FICA.

[00:28:06] Speaker 00:
It's an easier charge to prove.

[00:28:08] Speaker 00:
This court said, no problem in Shaw.

[00:28:10] Speaker 00:
The government may continue to prosecute defendants under either Section 1001,

[00:28:15] Speaker 00:
or FICA as it sees fit.

[00:28:17] Speaker 00:
Core principles of prosecutorial discretion.

[00:28:19] Speaker 00:
So your honor, I guess what I would say in response to your question at the bottom line is, if this court thought that the government would always charge 1519, which is not true to be clear, and I would reference this court's attention to United States v. Smuckler from the Third Circuit, I'm happy to give you a citation to that.

[00:28:35] Speaker 00:
It's 991, F.3D, 472, and you can look at note six.

[00:28:40] Speaker 00:
There we charged a false statement crime under FECA and not 1519, even though when you go look through this district court filings, you can actually see that 1519 was under investigation.

[00:28:50] Speaker 00:
So there are situations where the government is going to charge the one or the other.

[00:28:54] Speaker 04:
Could the judgment charge both?

[00:28:57] Speaker 00:
Certainly, the government could charge both.

[00:28:59] Speaker 00:
It frequently does charge overlapping crimes.

[00:29:01] Speaker 04:
So you've actually been quite restrained here in only charging one?

[00:29:04] Speaker 00:
I mean, I think one could say that, you know, frequently the government charges both crimes, recognizing that when they contain different elements as here, juries might reach contrary factual determinations as to the men's right of present.

[00:29:16] Speaker 00:
But that's the government's prerogative.

[00:29:18] Speaker 00:
And then if a jury finds a defendant guilty on one or both crimes, it goes to sentencing, where an Article 3 judge will sit down and determine what sentence should be run on those counts, concurrently, consecutively.

[00:29:28] Speaker 00:
within the traditional discretion of the court.

[00:29:31] Speaker 00:
That is how our system has worked for hundreds of years.

[00:29:33] Speaker 00:
This case should not be the one to suddenly displace that system.

[00:29:39] Speaker 00:
If the court has no further questions on 1519, I do want to talk briefly about the Rule 404b limiting instruction that Judge Henderson raised.

[00:29:47] Speaker 00:
Once again, Mr. Benton's argument on this front is unpreserved.

[00:29:52] Speaker 00:
Now, a moment ago during oral argument, he claimed that his objection in a pretrial motion in Lemonay preserved his objection to a limiting instruction.

[00:30:00] Speaker 00:
Once again, that's not correct.

[00:30:02] Speaker 00:
even if the district court's ruling on the Rule 404B substantive issue could be understood as definitive, and this was going to come in for modus operandi, which I want to be clear is not a catch, is not necessarily the same as identity.

[00:30:15] Speaker 00:
When evidence is admitted for modus operandi, that's a way of saying that someone has a pattern of doing things, and that can show their intent, the willfulness, their knowledge, what have you, sometimes identity.

[00:30:27] Speaker 00:
But it's not a catch-all.

[00:30:28] Speaker 00:
It's not identity, pure and simple.

[00:30:31] Speaker 00:
But Your Honor, I see my time has expired.

[00:30:33] Speaker 03:
Well, I just want to ask you.

[00:30:35] Speaker 00:
Yes, please.

[00:30:35] Speaker 03:
I won't beat a dead horse.

[00:30:37] Speaker 03:
But that first alternative, the jury was told the circumstances of the other crimes and charged offenses are so similar that it is likely that the person who committed the offenses also committed the offenses as charged in the indictment.

[00:30:56] Speaker 03:
That, to me,

[00:30:57] Speaker 03:
I would think a ledger would say if he did the first one, he did this one.

[00:31:05] Speaker 03:
Which of course is inadmissible.

[00:31:07] Speaker 00:
Your Honor, if we were just taking that portion of the instruction and it were understood to reference identity, if that alone was in front of this court, maybe that would be a cause for concern.

[00:31:18] Speaker 00:
But what's important to understand in the Rule 404B context

[00:31:21] Speaker 00:
is that the court then went ahead and gave the traditional no propensity evidence instructions alongside that portion of the Rule 44B.

[00:31:29] Speaker 00:
And we have to read this instruction as a whole, as this court's precedent in United States v. McGill teaches.

[00:31:34] Speaker 00:
We're not parsing jury instructions, individual sentences, and excerpting them from the entirety.

[00:31:41] Speaker 00:
So you have the district court saying you cannot use this evidence for propensity purposes.

[00:31:46] Speaker 00:
So at the very most, Your Honor, I think in the most unfavorable light to the government, what this instruction allowed the jury to do was to use Mr. Benton's prior convictions for identity purposes, an issue that was undisputed at trial.

[00:32:01] Speaker 00:
No one had any question here that Mr. Benton took the acts that were in fact criminal.

[00:32:06] Speaker 00:
So the jury had access to this evidence for

[00:32:08] Speaker 00:
an irrelevant 404B purpose possibly, but one that didn't matter.

[00:32:12] Speaker 00:
And then it was adequately told over and over not to use the evidence for propensity purposes.

[00:32:18] Speaker 00:
And I think this court can look to its sister court's decisions in Frazier, that's the Sixth Circuit case we cited, and Henry, that's the First Circuit case we cited.

[00:32:26] Speaker 00:
In situations identical to this, where arguably the jury instructions allowed the jury to consider rule 404B evidence for purposes of identity,

[00:32:36] Speaker 00:
When it was undisputed, the court, well, the First Circuit said, that's harmless.

[00:32:40] Speaker 00:
And then the Sixth Circuit said, there's certainly no substantial effect on rights under the Plain Air Standard of Review, which I would remind this court is the standard that applies to Mr. Benton's claim here.

[00:32:51] Speaker 00:
If anything, this is an easier case than Frazier or Henry.

[00:32:54] Speaker 03:
Well, I don't see the word propensity in the charge, and maybe that's a good thing because I'm not sure.

[00:32:59] Speaker 03:
the average year old would get any use from that.

[00:33:03] Speaker 00:
Your Honor, I certainly agree with you.

[00:33:04] Speaker 00:
It would not be a good thing for the government if the instructions said that the jury could use it for propensity.

[00:33:09] Speaker 00:
I think what I would specifically reference this court to are the portions of that jury instruction on page J.A.

[00:33:20] Speaker 00:
Right, it's on JA 386 to 387.

[00:33:23] Speaker 00:
And among other things in this instruction, the court specifically tells the jury, you may not use this evidence for any other purpose.

[00:33:30] Speaker 00:
Mr. Benton is only on trial for the crimes charged.

[00:33:33] Speaker 00:
Mr. Benton is not charged in this case with any offense relating to the offenses detailed in government's exhibit 30, which is the stipulation that contained his prior convictions.

[00:33:42] Speaker 00:
And you may not use this evidence to conclude that he has a bad character or that Mr. Benton has a criminal personality.

[00:33:49] Speaker 00:
The jury is being told all of this on JA 387, and so however else they might have understood the part that potentially troubles some language in this Rule 404B instruction, they did not understand the district court to have authorized the use of propensity evidence pure and simple.

[00:34:02] Speaker 00:
Any error on this front is harmless and certainly did not affect Mr. Benton's substantial rights under Plain Air Review.

[00:34:09] Speaker 03:
Do you know whether the record shows that the jury asked for any recharge or any

[00:34:16] Speaker 00:
No, Your Honor.

[00:34:18] Speaker 00:
The jury was instructed.

[00:34:19] Speaker 00:
The parties gave closing arguments.

[00:34:21] Speaker 00:
They then did spend two days deliberating, but I don't think that's particularly surprising in this case, because even if the facts of this case aren't particularly complicated, the law is extremely complicated.

[00:34:32] Speaker 00:
FICA and 1519, there were pardoned convictions at issue here.

[00:34:36] Speaker 00:
That's a lot for the jury to sit and think about.

[00:34:39] Speaker 00:
So even if they, and if anything, I think it reflects that they were very faithfully going through these instructions and doing their best to charge Mr. Benton, to find Mr. Benton guilty based on the instructions that the district court carefully gave.

[00:34:55] Speaker 03:
All right.

[00:34:56] Speaker 03:
Thank you.

[00:34:56] Speaker 00:
Thank you.

[00:34:59] Speaker 03:
Mr. Harper, why don't you take two minutes?

[00:35:04] Speaker 02:
Thank you, Your Honor.

[00:35:06] Speaker 02:
Just a couple of points in rebuttal.

[00:35:08] Speaker 02:
I mean, I think it's pretty telling that the government is really not defending the theory upon which it obtained a conviction below before the jury, that Mr. Benton intended to influence an election.

[00:35:15] Speaker 02:
It's not really defending the identity instruction that Your Honors were just talking about.

[00:35:19] Speaker 02:
It's resting its entire case on plain error review.

[00:35:22] Speaker 02:
And I think the errors here were plain and certainly in combination, they were highly prejudicial to Mr. Benton.

[00:35:26] Speaker 02:
Now, specifically on

[00:35:28] Speaker 02:
the FECA preservation point, the government said that it would be a new theory of preservation to allow a party to preserve something at the motion to dismiss stage for the jury instructions.

[00:35:38] Speaker 02:
And this court in the United States v. Papa held exactly that.

[00:35:42] Speaker 02:
The defendant there made a First Amendment argument at the motion to dismiss stage.

[00:35:45] Speaker 02:
The district court rejected it, and then the defendant this court held did not need to re-raise that at the jury instruction stage.

[00:35:51] Speaker 02:
So I think this issue was preserved.

[00:35:53] Speaker 02:
If you look at JA 293, the district court held

[00:35:58] Speaker 02:
I'm sorry, JA-93, the district court held that this element was not, the vast length of the perpet was not an element of the offense.

[00:36:07] Speaker 02:
As to the limiting instruction, if you look at JA-437, Judge Garcia, this is where the district court recognized that he had made a prior conclusion that this could come in for MO purposes.

[00:36:20] Speaker 02:
The government, the government's

[00:36:23] Speaker 02:
use of this instruction was also incredibly prejudicial.

[00:36:26] Speaker 02:
The government at closing argument repeatedly said, this is how Mr. Benton likes to commit his crimes.

[00:36:31] Speaker 02:
If you see a pattern, it's indicative of his guilt.

[00:36:33] Speaker 02:
This is someone who likes to cover their tracks.

[00:36:35] Speaker 02:
That is encouraging propensity reasoning of the most prejudicial kind and it flowed directly from the district court's decision to Errone's decision to admit this for identity purposes.

[00:36:43] Speaker 02:
And then lastly, on the 1519 point, I think

[00:36:47] Speaker 02:
The government can't really deny that there's complete overlap here.

[00:36:50] Speaker 02:
Every single willful violation of FECA involving a false report of $2,000 or more is going to be intended to obstruct the administration of the FEC.

[00:36:57] Speaker 02:
One of the FEC's core purposes is to ensure that contributions are accurately reported.

[00:37:02] Speaker 02:
I don't see any way around that.

[00:37:04] Speaker 02:
And if you let the government use Section 1519 in this context, it's going to use it in every single case.

[00:37:08] Speaker 02:
It's going to render FECA nullity.

[00:37:10] Speaker 02:
And so we would ask the court to reverse or add a minimum remand for a new trial on all counts.

[00:37:16] Speaker 03:
All right, Mr. Harper, you were appointed by this court to represent Mr. Benton, and we thank you for your very able assistance.

[00:37:24] Speaker 02:
Thank you, Your Honor.