United States v. Benton

98 F.4th 1119

UNITED STATES of America, Appellee v. Jesse R. BENTON, Appellant

No. 23-3028

United States Court of Appeals, District of Columbia Circuit

Argued February 12, 2024

Decided April 19, 2024

Appeal from the United States District Court for the District of Columbia (No. 1:21-cr-00569-1)

Denis N. Harper, appointed by the court, argued the cause for appellant. With him on the briefs were Matthew D. McGill and M. Christian Talley, appointed by the court.

W. Connor Winn, Attorney, U.S. Department of Justice, argued the cause and filed the brief for appellee. Scott A. Meisler, Attorney, and John P. Taddei, Trial Attorney, entered appearances.

Before: Henderson, Pan and Garcia, Circuit Judges.

Karen LeCraft Henderson, Circuit Judge:

In 2016, Jesse Benton received funds from foreign national Roman Vasilenko and contributed those funds, under his name but on Vasilenko's behalf, to a fundraiser supporting then-Presidential candidate Donald Trump. Vasilenko attended the fundraiser and had his photograph taken with Trump. A jury subsequently convicted Benton of six felonies stemming from the unlawful contribution and related campaign finance filings. Benton appeals on several grounds, including his challenges to the government's decision to prosecute campaign finance crimes under the Sarbanes-Oxley Act, 18 U.S.C. § 1519, the admissibility of an earlier pardoned conviction under Federal Rule of Evidence 404(b) and its use at sentencing, the sufficiency of the evidence and the jury charge. As detailed infra, we affirm the district court.

I. BACKGROUND

A. Facts

Roman Vasilenko is a Russian businessman involved in multilevel marketing. He was a candidate for a seat in the State Duma—Russia's parliament—during the fall of 2016. He met Roy Douglas "Doug" Wead through their multilevel-marketing work. Wead, an American, previously served as an advisor to President George H. W. Bush and was involved in several federal political campaigns. Through his translator, Vasilenko informed Wead of his interest in visiting the United States. Vasilenko paid Wead $100,000 to attend Wead's Charity Awards dinner and receive an award. Wead provided Vasilenko with a list of potential celebrity attendees and asked Vasilenko which celebrities he wanted to meet. Vasilenko responded with his choices: Oprah Winfrey, Steven Seagal, Vladislav Tretiak and former President Jimmy Carter. But Wead struggled to find a celebrity planning to attend the awards dinner.¹ Wead proposed an alternative: "[W]hat about Donald Trump?" J.A. 187. Vasilenko agreed and Wead then contacted Jesse Benton.

Jesse Benton is a political operative who led Ron Paul's 2012 presidential primary campaign. He owns a political consulting firm and had significant involvement in the Trump-supporting Great America Political Action Committee (PAC). In November 2015, a federal grand jury indicted Benton for concealing payments from a political committee to a state senator. In the Southern District of Iowa, a jury convicted him of, inter alia, "causing false records" under the Sarbanes-Oxley Act, 18 U.S.C. § 1519, and "causing false campaign contribution reports" under Federal Election Campaign Act (FECA), 52 U.S.C. §§ 30104(a)(1) and (b)(5)(A), 30109(d)(1)(A)(i). J.A. 338-39; see United States v. Benton, 890 F.3d 697 (8th Cir. 2018). Benton formally stepped down from his role at the Great America PAC in the wake of his conviction but continued to participate in its fundraising efforts. President Trump later pardoned Benton. Benton and Wead knew one another from their work on federal political campaigns.

Benton and Wead spoke shortly after Vasilenko expressed interest in meeting Trump. Benton then communicated with his contacts at the Republican National Committee (RNC). In an email to RNC chief of staff Katie Walsh, Benton claimed he had a friend spending "most of his time in the Caribbean" who "caught the Trump bug" and wanted to "attend a funder and get a photo." J.A. 321-22. The RNC provided information about several fundraisers, including a Philadelphia fundraiser scheduled for September 22, 2016. Vasilenko indicated he was "happy and ready to wire his donation" for the Philadelphia fundraiser. J.A. 319. Wead responded to Vasilenko that he and Benton "want to do this correctly." Id. Benton then notified the RNC that "[w]e'd like to do the Philly event on 9/22."² J.A. 320.

The fundraising committee Trump Victory hosted the Philadelphia fundraiser. Promotional materials noted that contributions were to be allocated to Donald J. Trump for President, Inc., the RNC and various state Republican parties. The materials also explained that any contributions were subject to federal law and "will be used in connection with federal elections." J.A. 325. The event involved two functions: a roundtable discussion and a reception plus photo opportunity. Donors could first attend the roundtable with Trump for a minimum donation of $25,000. Roundtable attendees were automatically invited to the later reception but a donor had to pay $5,400 to attend the reception only.

After some discussion, Benton expressed interest in the pricier roundtable tickets. Benton and Wead sent Vasilenko an apparently false invoice for "consulting work" related to Wead's Charity Awards organization and Vasilenko wired Benton $100,000. Benton ordered two roundtable tickets for "Doug Wead and a guest," at $25,000 each, the day before the Philadelphia fundraiser. J.A. 333. As with the RNC, Benton never disclosed Vasilenko's foreign national status to Trump Victory. And he did not pay for the tickets before the fundraiser. Vasilenko and Wead attended the roundtable and the reception. Photographs show Vasilenko with and near Trump.

After the event, Vasilenko's translator repeatedly contacted Wead about obtaining the photos. When Vasilenko finally received them, he posted one on social media with the caption "Two Presidents." Vasilenko gained significant attention as a result, including speaking on Russian TV about President-elect Trump and his attitudes toward Russia. Meanwhile, Benton still had not paid for the fundraiser tickets. He finally paid in late October—only $25,000. His contribution form identified himself as the contributor. Benton explained that he "bought the tickets" and gave "them to Doug and Roman, so the money comes from me." J.A. 220. Trump Victory contacted Benton about the missing $25,000—he had originally pledged to pay $50,000—but he never paid it. According to the indictment, Benton kept the remaining $75,000 from Vasilenko's $100,000 payment. Benton's false statements regarding the $25,000 contribution resulted in the fundraising committees' filing of false campaign-finance disclosures.

B. Statutory Background

In September 2021, the government obtained a six-count indictment against Benton,³ charging him with six felonies: conspiracy in violation of 18 U.S.C. § 371 (Count One); soliciting a contribution from a foreign national in violation of FECA, 52 U.S.C. § 30121 (Count Two); serving as a conduit for a FECA "contribution" in violation of 52 U.S.C. § 30122 (Count Three); and "causing false records" in violation of 18 U.S.C. § 1519 of the Sarbanes-Oxley Act (Counts Four, Five and Six). J.A. 17-35.

FECA is an intricate statutory scheme regulating political contributions and expenditures and applies to all phases and participants in the electoral process. See 52 U.S.C. §§ 30101-30146; Buckley v. Valeo, 424 U.S. 1, 12-13, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). A "contribution" under FECA includes "any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office." 52 U.S.C. § 30101(8)(A)(i). As relevant here, FECA prohibits (1) a foreign national from making a contribution or donation and (2) any person from soliciting, accepting or receiving such a contribution from a foreign national. Id. § 30121(a). FECA also forbids making "a contribution in the name of another person." Id. § 30122. Violations of FECA can trigger civil or criminal penalties. Id. § 30109. Anyone who "knowingly and willfully" commits a violation of the Act which involves "making, receiving, or reporting of any contribution, donation, or expenditure" aggregating $25,000 or more during a calendar year is subject to up to five years' imprisonment and a fine. Id. § 30109(d)(1)(A)(i).

The indictment also charged Benton with three counts of "causing false records" under 18 U.S.C. § 1519, part of Sarbanes-Oxley. J.A. 32-34. Enacted in 2002 following the exposure of Enron's massive accounting fraud, Yates v. United States, 574 U.S. 528, 535, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015) (plurality op.), Sarbanes-Oxley prohibits causing "a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence" the administration "of any matter within the jurisdiction of any department or agency of the United States." 18 U.S.C. § 1519. A violator faces potential fines and up to twenty years' imprisonment. Id. Although the Congress enacted § 1519 in the context of Enron's financial record/document fraud, the Supreme Court has noted that it applies in a "multiplicity of contexts." Yates, 574 U.S. at 542 n.5, 135 S.Ct. 1074.

C. District Court Proceedings

Benton moved to dismiss the indictment, arguing (1) the government did not allege that Vasilenko intended to influence the election and (2) § 1519 of Sarbanes-Oxley does not apply to election crimes that can be prosecuted under FECA. The district court explained that "the indictment need not define down the statutory term[ ] of 'contribution' " in detail, J.A. 93, and held § 1519 applicable to a false campaign finance filing. It denied Benton's motion to dismiss but, importantly, "without prejudice so that the defense may raise arguments about these issues in its case in chief." J.A. 94.

Also pre-trial, the government moved to admit Benton's past conviction as "bad act" evidence...