In United States v. Kukushkin, the Second Circuit (Pooler, Lohier, and Nathan) affirmed the conviction of Andrey Kukushkin for conspiring to illegally donate monies to a political campaign in violation of 52 U.S.C. §§ 30121, 30122 and 18 U.S.C. § 371 and one count of aiding and abetting over $25,000 of such donations in violation of 52 U.S.C. § 30121 and 18 U.S.C. § 2. In his appeal, Kukushkin argued, among other things, that it was error for the district court to refuse to instruct the jury on willfulness. The Court held that that the district court did not err in giving the standard jury instruction on “willfulness” because there was no basis for applying a heightened standard in cases charged under the Federal Election Campaign Act (“FECA”). In particular, the Court did not apply the willfulness standard adopted by the Supreme Court in prosecutions brought under the tax and structuring statutes. See Cheek v. United States, 498 U.S. 192 (1991) (tax); Ratzlaf v. United States, 510 U.S. 135 (1994) (structuring); see also Bryan v. United States, 524 U.S. 184 (1998) (limiting reach of Cheek and Ratlzaf in firearms case).
Background
In or about June 2018, through about April 2019, Lev Parnas, Igor Fruma, David Correia, and Andrey Kukushkin allegedly conspired to have a foreign national fund political donations for federal and state candidates. Defendants allegedly intended to assert control and influence over elected officials to secure policies and licensing decisions that would benefit a future cannabis business. As a result of Kukushkin’s participation, he was charged with conspiring to funnel over $25,000 from a foreign national to U.S. political campaigns under other people’s names, and aiding and abetting others to do the same, in violation of 52 U.S.C. §§ 30109, 30121, and 30122, and 18 U.S.C. §§ 2 and 371.
After a jury trial, Kukushkin was convicted and moved for acquittal. Defendant Parnas also moved for acquittal. In the alternative, both defendants moved for a new trial. On March 7, 2022, defendants’ motions for judgment of acquittal or for a new trial was denied. The judgment of conviction was entered after a jury trial on March 15, 2022. Kukushkin was sentenced to a year and a day imprisonment and fined $10,000. Subsequently, Kukushkin appealed.
Second Circuit’s Decision
Under FECA it is illegal to engage in certain conduct related to political donations. Count One of the indictment charged Kukushkin with conspiring to make contributions by a foreign national in violation of 18 U.S.C. § 371. The indictment alleged the conspiracy had three objects:
1) to knowingly and willfully make political donations by a foreign national of at least $25,000 in a calendar year, in connection with federal and state elections, in violation of 52 U.S.C. § 30121;
2) to knowingly and willfully make political donations in the names of other persons of at least $25,000 in a calendar year, in violation of 52 U.S.C. § 30122; and
3) to knowingly defraud the United States by interfering with the Federal Election Commission’s function to administer federal law concerning monetary source and amount restrictions in federal and state elections, including the prohibitions applicable to foreign nationals and straw donors.
In addressing what constitutes acting “knowingly and willfully” to violate FECA, the Court held that the Government must prove, without specificity, that the defendant acted with knowledge that his or her conduct was unlawful as established in Bryan v. United States, 524 U.S. 184, 191-92 (1998). The Court noted two exceptions to the general rule stated in Bryan. First, the Court acknowledged the holding in Cheek v. United States, 498 U.S. 192 (1991), which required the jury in that case to find that the defendant was aware of a specific provision of the tax code he was charged with violating. Secondly, the Court identified a currency structuring case, Ratzlaf v. United States, 510 U.S. 135 (1994), where the Supreme Court found that the jury had to know that defendant’s structuring of cash transaction to avoid a reporting requirement was unlawful.
The Court relied on Bryan, where the Supreme Court distinguished the firearm violations in that case to the “highly technical statutes” at issue in Cheek and Ratzlaf, finding that the danger of convicting individuals engaged in apparently innocent conduct “motivated” the Court’s decisions in Ratzlaf, but was not “present” in Bryan. The Court explained that in Bryan, the jury found that the petitioner was aware his conduct was unlawful, leading the Supreme Court to conclude that “a statute’s willfulness requirement does not require the government to prove specific intent unless the statute is highly specialized and complex and implicates seemingly innocent conduct.” Without much additional analysis, the Court affirmed the district court’s decision to decline the jury charge with a heightened willfulness standard, finding that FECA, although not “as straightforward as other statutes,” was not as “highly technical and complicated” as the tax issue in Cheek, nor poses any threat of accidental violation as the anti-structuring law at issue in Ratzlaf.
The Court also explained that this decision was in accord with the decision of every Circuit to thus far have considered the issue, as well as the decisions of several district courts. The Court cited the Third Circuit’s rationale: while FECA “packs in rules . . . those rules are reasonably straightforward and written in common terms.” (quoting United States v. Smukler, 991 F.3d 472, 485-86 (3d Cir. 2021)).
Commentary
Generally, ignorance of the law or a mistake of law is not a defense to criminal prosecution, even when the statute, like the statute at issue here, FECA, require that a defendant “knowingly and willfully” violate the law. The Supreme Court has interpreted the use of “knowingly and willfully,” to require the government to establish a willful violation of a statute, requiring evidence that the defendant acted generally with knowledge that their conduct was unlawful. However, the Supreme Court does not ordinarily require the government to prove a defendant acted with a specific intent to commit a particular crime, instead, knowledge that a conduct is unlawful is sufficient.
Cheek and Ratzlaf provide for two limited exceptions where the government is required to prove a defendant acted with a specific intent to commit a particular crime. Cheek and Raztlaf, obligate the government to prove specific intent if a statute is highly specialized and complex or, if a statute may implicate seemingly innocent conduct. Here, the Court determined that FECA, although not particularly straightforward, was not as highly technical and complicated as the tax code issue in Cheek, which was what other courts have held in the past.
However, although FECA may not appear to be as technical as the tax code at issue in Cheek, the Court’s analysis is brief and does not provide much detail as to why this case is on one side of this line as oppose to the other. For example, is it intuitive that an individual would know that a it is crime under FECA for a foreign national to donate $25,000 as opposed to a lawful $24,999 political donation. Additionally, FECA contains numerous instructions that may be complicated for an ordinary individual—that is, for a non-lawyer. Thus, in a world of increasingly complicated statutory and regulatory schemes, courts should be mindful of how an ordinary individual may approach the rule and the possibility of “inadvertently ensnaring uniformed individuals.” The Court cites, United States v. Singh, 979 F.3d 697, 712 (9th Cir. 2020), reasoning that “FECA ‘simply prohibits foreign nationals from donating or contributing to candidates or political parties.’” That description strips away the nuances addressed by FECA. The technicalities of an appropriate donation still require analysis and statutory interpretation and indeed many politicians and constituents seek out legal advice precisely because this area of the law is so complicated. It is hard not to see why many have argued that FECA presents the same concern of inadvertently ensnaring uniformed individuals as do the anti-structuring laws at issue in Ratzlaf or the tax laws at issue in Cheek. In a world with increasingly complicated statutory and regulatory schemes, defense lawyers should continue to litigate the willfulness issue.
One final thought: this case deals with protected speech in the form of campaign contributions. As the Supreme Court has held over and over again, the First Amendment shields campaign contributions from most forms of regulation or prohibition. See Citizens United v. FEC. 558 U.S. 310, 349 (2010) (“If the First Amendment has any force, it prohibits Congress from fining or jailing citizens . . . for simply engaging in political speech.”). Courts should show great hesitance in broadly interpreting statutes that would criminalize campaign contributions, as FECA does in this context. Even if the Circuits are unified in accepting the interpretation of FECA advanced in Kukushkin, it is possible that the Supreme Court will take a different view based on its recent jurisprudence in this area.
