United States v. F. Whittemore , 776 F.3d 1074 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10515
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-00058-
LRH-WGC-1
F. HARVEY WHITTEMORE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
October 6, 2014—San Francisco, California
Filed January 26, 2015
Before: Kim McLane Wardlaw, William A. Fletcher,
and Paul J. Watford, Circuit Judges.
Opinion by Judge W. Fletcher
2 UNITED STATES V. WHITTEMORE
SUMMARY*
Criminal Law
The panel affirmed convictions of making excessive
campaign contributions in violation of 21 U.S.C.
§§ 441a(a)(1) and 437g(d)(1)(A)(i), and making contributions
in the name of another in violation of 2 U.S.C. §§ 441f and
437g(d)(1)(A)(i).
The panel held that the defendant’s theory – that
unconditional gifts under Nevada law cannot be conduit
contributions in violation of federal law – is not supported by
law, and that to the extent the defendant’s theory is that the
unconditional nature of the gifts prevented him from forming
the necessary intent, the instructions given by the court
adequately encompassed his theory.
The panel did not entertain the defendant’s challenge to
the district court’s tentative ruling denying the defendant’s
motion in limine to exclude proffered testimony from a
linguistics professor, where the defendant never renewed the
motion. Regarding the defendant’s contentions that the
district court improperly allowed speculative testimony in
violation of Fed. R. Evid. 602, the panel held that defense
counsel had opened the door to some of the testimony, that
some of the testimony was not impermissibly speculative, and
that any error was harmless.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. WHITTEMORE 3
The panel held that there was sufficient evidence to
support the conviction.
COUNSEL
Justin James Bustos, Gordon & Silver, Reno, Nevada; Brian
Warner Hagen, Whittemore Law Firm, Reno, Nevada;
Dominic P. Gentile and Vincent Savarese, III (argued),
Gordon & Silver, Las Vegas, Nevada, for Defendant-
Appellant.
Elizabeth Olson White (argued), Appellate Chief and
Assistant United States Attorney, Reno, Nevada; Steven
Warren Myhre, First Assistant United States Attorney, Las
Vegas, Nevada, for Plaintiff-Appellee.
OPINION
W. FLETCHER, Circuit Judge:
In February 2007, F. Harvey Whittemore agreed to raise
$150,000 for Senator Harry Reid’s reelection campaign by
March 31. A few days before the deadline, Whittemore
distributed a total of $145,000, in increments of $5,000 per
person, to some of his relatives and to employees of a
company of which he was chairman, requesting that the
recipients make contributions to Senator Reid’s campaign.
Each recipient made a contribution of $4,600, the maximum
allowed under federal law. A jury convicted Whittemore of
making excessive campaign contributions in violation of
2 U.S.C. §§ 441a(a)(1) and 437g(d)(1)(A)(i), and making
contributions in the name of another in violation of 2 U.S.C.
4 UNITED STATES V. WHITTEMORE
§§ 441f and 437g(d)(1)(A)(i). (The relevant provisions of
Title 2 of the U.S. Code have since been moved to Title 52
and renumbered.) Whittemore appeals, arguing that (1) the
district court impermissibly failed to instruct the jury on the
theory of his defense; (2) the individual contribution limits in
the Federal Election Campaign Act (“FECA”) and the
Bipartisan Campaign Reform Act violate the First
Amendment; (3) the district court made two erroneous
evidentiary rulings; and (4) the conviction was based on
insufficient evidence.
We affirm.
I. Background
F. Harvey Whittemore is a prominent attorney, developer,
and lobbyist who has long been active in Nevada politics and
political fundraising. In early 2007, Whittemore was serving
as Chairman of Wingfield Nevada Group, a holding company
with significant interests in golf courses, land development,
oil and gas properties, and dairy operations.
Whittemore had been a past supporter of Senator Harry
Reid. In February 2007, after a meeting with Senator Reid,
Whittemore promised to raise $150,000 for Senator Reid’s
2010 reelection campaign before the upcoming March 31
campaign finance filing deadline. When the campaign had
not received any funds from Whittemore by late March,
Senator Reid’s fundraiser twice followed up with
Whittemore.
On March 27, 2007, the day of the second follow-up call,
Whittemore transferred a total of $145,000 to seventeen
relatives and employees through wire transfers and checks.
UNITED STATES V. WHITTEMORE 5
Those who were single received $5,000, while couples who
were married or engaged received $10,000. Each recipient
made a campaign contribution to Senator Reid’s campaign of
the statutory maximum contribution of $4,600, most within
one day of receiving the money. Many of the recipients
testified at trial that they would not or could not have made
such large contributions absent the transfers from
Whittemore. The recipients generally testified that
Whittemore had characterized the funds as “bonuses” or
“gifts” and that he simultaneously encouraged them to make
contributions to Senator Reid’s campaign, sometimes
explicitly stating that the funds were intended to cover the
cost of the contribution.
Whittemore’s assistant, Roxanne Doyle, testified that on
March 28 she sent contribution checks by FedEx to Jake
Perry, Senator Reid’s fundraiser, with a cover memo and a
spreadsheet of donor information. The cover memo indicated
that three of the checks listed on the spreadsheet had been
sent to the campaign separately. The spreadsheet identified
thirty-three donors, thirteen of whom were employees of
Wingfield Nevada Group, including Whittemore.
Whittemore was identified as the company’s chairman. Two
other donors were identified as employees of Red Hawk, a
Wingfield subsidiary. Perry testified that the campaign
received all of the checks except for one of the three that had
been sent separately.
On April 13, two days before Senator Reid’s campaign
was to report its quarterly fundraising information to the
Federal Election Commission, Whittemore sent Perry an e-
mail with the subject heading “contribution list,” along with
a new spreadsheet that listed the same thirty-three donors.
On this spreadsheet, however, only four of the donors were
6 UNITED STATES V. WHITTEMORE
listed as Wingfield employees. Several were now identified
as employees of Wingfield subsidiaries whose names did not
signal any relationship to Wingfield. Roxanne Doyle had
previously been identified as “Executive Assistant, Wingfield
Nevada Group.” She was now identified as an employee of
Harvey Whittemore Attorney at Law. Christina Mamer had
been identified as “VP of Human Resources, Wingfield
Nevada Group.” She was now identified as an employee of
Whittemore-Seeno Company; the prosecution introduced
evidence that there is no company registered by that name in
Nevada. Whittemore himself was now identified as “Partner,
Lionel Sawyer & Collins.”
Following a two-week trial, a jury convicted Whittemore
of making excessive campaign contributions in violation of
2 U.S.C. §§ 441a(a)(1) and 437g(d)(1)(A)(i), making
contributions in the name of another in violation of 2 U.S.C.
§§ 441f and 437g(d)(1)(A)(i), and making a false statement
to a federal agency in violation of 18 U.S.C. §§ 1001(a)(2)
and 2. The jury could not reach a verdict on a second charge
of making a false statement to a federal agency. The district
court declared a mistrial on that count and granted the
government’s motion to dismiss without prejudice. The court
granted Whittemore a downward variance from the guideline
sentencing range of 41 to 51 months, sentencing him to 24
months in prison.
II. Standard of Review
We review de novo whether jury instructions properly
state the elements of the charged offense and adequately
cover the defense’s theory of the case. United States v.
Romm, 455 F.3d 990, 1002 (9th Cir. 2006); United States v.
Stapleton, 293 F.3d 1111, 1114 (9th Cir. 2002). We also
UNITED STATES V. WHITTEMORE 7
review constitutional claims de novo. United States v.
Chovan, 735 F.3d 1127, 1131 (9th Cir. 2013).
We review evidentiary rulings for abuse of discretion and
any underlying factual determinations for clear error. United
States v. Lukashov, 694 F.3d 1107, 1114 (9th Cir. 2012).
“Evidentiary rulings will be reversed for abuse of discretion
only if such nonconstitutional error more likely than not
affected the verdict.” United States v. Corona, 34 F.3d 876,
882 (9th Cir. 1994).
“Where a defendant moves for acquittal at the close of the
government’s evidence, we review de novo whether sufficient
evidence exists to support a guilty verdict.” United States v.
Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005). A conviction
is supported by sufficient evidence if, “viewing the evidence
in the light most favorable to the government, a rational trier
of fact could conclude that the evidence was adequate to
prove guilt beyond a reasonable doubt.” United States v.
Barbosa, 906 F.2d 1366, 1368 (9th Cir. 1990).
III. Discussion
Whittemore makes a number of arguments challenging
his conviction. We address them in turn.
A. Jury Instructions
Whittemore first argues that the district court erred in
refusing to instruct the jury that an unconditional gift of funds
cannot violate § 441f if the funds have become the property
of the donors under Nevada law.
8 UNITED STATES V. WHITTEMORE
“A defendant is entitled to have the judge instruct the jury
on his theory of defense, provided that it is supported by law
and has some foundation in the evidence.” United States v.
Mason, 902 F.2d 1434, 1438 (9th Cir. 1990), overruled on
other grounds by Dixon v. United States, 548 U.S. 1 (2006),
as recognized by United States v. Doe, 705 F.3d 1134 (9th
Cir. 2013). “[B]ut it is not reversible error to reject a
defendant’s proposed instruction . . . if other instructions, in
their entirety, adequately cover that defense theory.” Id. In
United States v. Thomas, 612 F.3d 1107, 1120 (9th Cir.
2010), we articulated a three-part test, requiring the defendant
to show (1) that his theory has some foundation in evidence;
(2) that it is supported by law; and (3) that the given
instructions did not adequately encompass his theory.
Whittemore’s theory that unconditional gifts under
Nevada law cannot be conduit contributions in violation of
federal law is not supported by law. Furthermore, to the
extent Whittemore’s theory is that the unconditional nature of
the gifts prevented him from forming the necessary intent, the
instructions given by the court adequately encompassed his
theory.
1. Unconditional Gifts
Section 441a imposes limits on individual campaign
contributions made directly to candidates. See 52 U.S.C.
§ 30116(a)(1)(A) (formerly 2 U.S.C. § 441a(a)(1)(A)). In
2007, the inflation-adjusted limit for both primary and
general election campaign contributions was $2,300, for a
total base limit of $4,600 per person per candidate during a
single election cycle. See id. § 30116(c)(1) (formerly
2 U.S.C. § 441a(c)(1)); 72 Fed. Reg. 5294, 5295 (Feb. 5,
2007). The statute defines a “contribution” as “any gift,
UNITED STATES V. WHITTEMORE 9
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)
(formerly 2 U.S.C. § 431(8)(A)(i)). The limit includes “all
contributions made by a person, either directly or indirectly,
on behalf of a particular candidate, including contributions
which are in any way earmarked or otherwise directed
through an intermediary or conduit to such candidate.” Id.§ 30116(a)(8) (formerly 2 U.S.C. § 441a(a)(8)). Section 441f
directly addresses so-called “conduit” or “straw donor”
contributions. See Goland v. United States, 903 F.2d 1247,
1251 (9th Cir. 1990). It provides:
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.
52 U.S.C. § 30122 (formerly 2 U.S.C. § 441f).
Whittemore argues that § 441f, on its face, does not
prohibit “an unconditional gift made to a third party who
subsequently decides to voluntarily contribute to a
campaign,” “even if that contribution is made pursuant to the
suggestion of the giftor.” Whittemore argues that because the
money he transferred to his relatives and employees became
“the giftees’ own money” and because the transfers were not
“conditioned upon the making of campaign contributions or
otherwise, the giftees’ subsequent campaign contributions
could not trigger a violation of § 441f” as a matter of law. He
further contends that this reading is mandated by the rule of
lenity.
10 UNITED STATES V. WHITTEMORE
Whittemore’s arguments are foreclosed by our decision
in United States v. O’Donnell, 608 F.3d 546 (9th Cir. 2010).
In O’Donnell, the defendant arranged to reimburse
contributions made by thirteen employees and family
members to the Edwards for President campaign. Id. at 548.
On appeal, he argued that § 441f did not apply to “straw
donor” contributions made from a conduit donor’s funds that
were later reimbursed, since the straw donor “actually made”
the contribution. Id. at 549. We held that the statutory text
and purpose precluded this reading. We first noted that the
statutory definition of “contribution” did not address the
identity of the donor who actually “makes” the contribution.
Id. at 550. We then applied the dictionary definition of
contribute—“‘[t]o give or supply in common with others;
give to a common fund or for a common purpose’”—to hold
that “it is clear that O’Donnell gave the money at issue for the
common purpose of advancing the Edwards campaign” and
so made a “contribution” within the meaning of the statute.
Id. (quoting AMERICAN HERITAGE COLLEGE DICTIONARY 303
(3d ed. 2000)) (alteration in original). We also specifically
examined the statute’s use of the word “gift.” “In the context
of gifts,” we noted, “the word ‘giving’ connotes the idea of
providing from one’s own resources . . . , and thus we refer to
the original source rather than the intermediary as the one
who gave.” Id. Accordingly, we held that
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. Accordingly,
UNITED STATES V. WHITTEMORE 11
the statutory language applies when a
defendant’s funds go to a campaign either
directly from him or through an intermediary.
Id. We wrote that our interpretation of § 441f clearly
furthered the congressional purpose of “ensur[ing] the
complete and accurate disclosure of the contributors who
finance federal elections,” since straw donor contributions
“undermine transparency no less than false name
contributions do by shielding the identities of true
contributors.” Id. at 553–54.
Whittemore argues that O’Donnell does not control
because the transferees here did not act as mere
intermediaries. He argues that the legal difference between
the intermediaries discussed in O’Donnell and the transferees
here is equivalent to the difference between bailees and
owners. He contends that because the court failed to instruct
the jury regarding Nevada state property law, the jury was
prevented from considering this legal difference.
We disagree. In O’Donnell, the contributions at issue
were made with the straw donors’ own funds, which were
later reimbursed. The status of the donated funds under state
property law, at the time of their donation, was irrelevant to
a determination of who “made” the contribution for the
purposes of § 441f. The key issue under § 441f is the source
of the funds, regardless of the status of the funds under state
property law at the time of the donation. See id. at 550. In
this case, the jury instructions required the jury to find that
Whittemore knew the named contributors were not in fact the
“true source” of the money used for the contributions, and
that Whittemore caused those contributions to be made. In
light of these findings, each of Whittemore’s transfers
12 UNITED STATES V. WHITTEMORE
constitutes a “contribution” under § 441f. The jury’s
conclusions that Whittemore made excessive campaign
contributions in violation of § 441a(a)(1) and caused a false
report to be made to the Federal Election Commission in
violation of 18 U.S.C. §§ 1001(a)(2) and 2 follow
accordingly.
2. Intent
Whittemore also argues that the court’s failure to instruct
the jury on his unconditional gift theory prevented the jury
from fully considering whether he had the intent to make an
illegal conduit contribution. We hold that the instructions
were adequate.
Jury instructions must be legally accurate and must allow
the jury to consider any defense theory supported by law. See
Mason, 902 F.2d at 1441. However, the defendant is not
entitled to the instructions of his choice. Our recent decision
in Thomas is illustrative. There, the district court gave a
model jury instruction in the defendant’s perjury prosecution
that required the jury to find that the defendant’s testimony
was false and that the defendant knew of its falsity. Thomas,
612 F.3d at 1122. The defendant argued that the court erred
by failing to give an instruction based on her “literal truth”
defense—that her testimony could not be perjury if it were
literally true, even if it had “an especially strong tendency to
be misleading.” Id. at 1119–20. We held that the provided
instruction was adequate because it required findings that
would be incompatible with a finding that the same statement
was “literally true.” Id. at 1121–22; see also Romm, 455 F.3d
at 1002 (holding that because the given instructions required
the same finding as the defendant’s proffered instructions,
UNITED STATES V. WHITTEMORE 13
refusal to give defendant’s instructions did not constitute
error).
Here, the court read to the jury the text of §§ 441f and
437g(d)(1)(A) and recited the required elements of the
offense. It also instructed the jury on conduit contributions,
drawing from the statutory definition of “contribution” in
§ 431(8)(A)(i) and from our decision in O’Donnell. The
instruction provided:
Specifically, the law prohibits conduit
contributions, which occur when a person
provides anything of value, including a gift,
subscription, loan, advance, deposit of money,
or promise of reimbursement, to another
person for the purpose of causing that other
person to make a contribution in that other
person’s name. In other words, it is unlawful
when a defendant solicits others to contribute
to a candidate for federal office in their own
names and furnishes the money for the
contribution either through an advance or a
prearranged reimbursement.
The court also instructed the jury that the defendant must
have acted “knowingly and willfully,” meaning that “the
defendant is aware of the act and does not act through
ignorance, mistake, or accident,” and that “the defendant
acted with knowledge that some part of his course of conduct
was unlawful and with the intent to do something the law
forbids.”
Based on these instructions, the jury was permitted to
conclude that Whittemore acted without the requisite intent
14 UNITED STATES V. WHITTEMORE
by giving funds to his donees without the purpose that these
funds be used for improper campaign contributions, and, on
that basis, to return a verdict of acquittal. See O’Donnell,
608 F.3d at 550. The district court thus did not err by
excluding Whittemore’s proffered instructions.
B. Constitutional Claim
Whittemore also argues that the individual contribution
limits of § 441a and the prohibition on conduit contributions
in § 441f violate his free speech and association rights under
the First Amendment. This argument is foreclosed by the
Supreme Court’s holding in Buckley v. Valeo, 424 U.S. 1(1976) (per curiam), that contributions, as distinct from
independent expenditures, may be limited.
In Buckley, the Court held that quid pro quo corruption
and the “impact of the appearance of corruption stemming
from public awareness of the opportunities for abuse inherent
in a regime of large individual financial contributions”
constituted “a constitutionally sufficient justification” for
FECA’s individual contribution limit. 424 U.S. at 26–27.
Neither Citizens United v. Federal Election Commission,
558 U.S. 310 (2010), nor McCutcheon v. Federal Election
Commission, 134 S. Ct. 1434 (2014), overrules this holding
of Buckley. In Citizens United, the Court concluded that
2 U.S.C. § 441b, prohibiting corporations from express
advocacy in the election or defeat of federal candidates,
violated the First Amendment. 558 U.S. at 337, 372. Rather
than “eviscerate” Buckley, as Whittemore claims, the Court
reinforced it, distinguishing between § 441b and the statute at
issue in another case, Federal Election Committee v. National
Right to Work Committee, 459 U.S. 197 (1982), which
restricted corporations’ ability to solicit PAC funds that
UNITED STATES V. WHITTEMORE 15
would be used to make direct contributions. The Court
reasoned that National Right to Work Committee “involved
contribution limits, which, unlike limits on independent
expenditures, have been an accepted means to prevent quid
pro quo corruption,” and noted that Citizens United “ha[d]
not made direct contributions to candidates, and it [had] not
suggested that the Court should reconsider whether
contribution limits should be subjected to rigorous First
Amendment scrutiny.” 558 U.S. at 359 (citation omitted). In
McCutcheon, limits on contributions to individual campaigns
were not at issue, and the Court explicitly declined to address
them. See 134 S. Ct. at 1442, 1445. Rather, the Court struck
down aggregate limits on individual contributions under
2 U.S.C. § 441a(a)(3). Id. at 1442.
C. Evidentiary Rulings
Whittemore makes two arguments based on the district
court’s evidentiary rulings. First, he argues that the district
court improperly excluded proffered testimony from Valerie
Fridland, a linguistics professor who would have offered her
opinion regarding potential interpretations of the text of
§ 441f. Second, he argues that the district court improperly
allowed speculative testimony in violation of Federal Rule of
Evidence 602.
1. Exclusion of Fridland’s Testimony
In response to a pretrial motion in limine, the district court
concluded that Fridland’s proposed testimony was “likely
inadmissible on two grounds.” First, to the extent that
Fridland would testify that Whittemore’s alleged
interpretation of § 441f was “reasonable,” it was “excludable
as a legal conclusion.” Second, the testimony was unlikely to
16 UNITED STATES V. WHITTEMORE
assist the jury because, among other things, it “ha[d] nothing
to do with Whittemore’s actual beliefs”; it “resulte[d] from a
process of reasoning familiar in everyday life,” namely
speaking standard American English; and testimony about
“something [the jury] already knows” backed by “impressive
credentials” could lead the jury to give Fridland’s testimony
undue weight. The court denied the motion without
prejudice, stating that evidence introduced during the trial
could warrant reconsideration.
A ruling on a motion in limine is not a final order under
28 U.S.C. § 1291 because such rulings “are by their very
nature preliminary.” Coursen v. A.H. Robins Co., Inc.,
764 F.2d 1329, 1342 (9th Cir. 1985). “Where a district court
makes a tentative in limine ruling excluding evidence, the
exclusion of that evidence may only be challenged on appeal
if the aggrieved party attempts to offer such evidence at trial,”
which allows the court make a final ruling. Adkins v. Mireles,
526 F.3d 531, 542 (9th Cir. 2008) (internal quotation marks
omitted). Federal Rule of Evidence 103(b) provides,
however, that a formal proffer of evidence at trial is not
required if the court “rules definitively on the record” to
exclude that evidence, either before or at trial.
The district court’s ruling was tentative and without
prejudice to Whittemore’s renewing his motion. The court
specifically noted that it was possible that changed
circumstances could “warrant reconsideration” of the court’s
initial ruling that Fridland’s testimony was inadmissible. The
court thus left Whittemore the opportunity to renew his
motion, but he never did so.
UNITED STATES V. WHITTEMORE 17
2. Speculative Testimony
Under Rule 602, “[a] witness may testify to a matter only
if evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter.” FED. R.
EVID. 602. Rule 602 requires any witness to have sufficient
memory of the events such that she is not forced to “fill[] the
gaps in her memory with hearsay or speculation.”
27 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE &
PROCEDURE EVIDENCE § 6023 (2d ed. 2007). Witnesses are
not “permitted to speculate, guess, or voice suspicions.” Id.
§ 6026. However, “[p]ersonal knowledge includes opinions
and inferences grounded in observations and experience.”
Great Am. Assurance Co. v. Liberty Surplus Ins. Co., 669 F.
Supp. 2d 1084, 1089 (N.D. Cal. 2009) (citing United States
v. Joy, 192 F.3d 761, 767 (7th Cir. 1999)). Lay witnesses
may testify about inferences pursuant to Rule 701:
If a witness is not testifying as an expert,
testimony in the form of an opinion is limited
to one that is: (a) rationally based on the
witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to
determining a fact in issue; and (c) not based
on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
FED. R. EVID. 701.
During Whittemore’s trial, counsel for both the
prosecution and the defense asked witnesses questions asking
for various degrees of speculation. Whittemore objects to the
admission of testimony of various witnesses. Roxanne
Doyle, his assistant, testified that Whittemore had given her
18 UNITED STATES V. WHITTEMORE
a check for $10,000 and that upon Whittemore’s request, she
and her husband had used those funds to make maximum
contributions to Senator Reid’s campaign. On cross-
examination, defense counsel asked Doyle if she would have
expected to be fired or disciplined had she not made the
contribution. Doyle responded that she would not expect to
be fired, but she “would expect to be spoken to about it.” On
redirect, the prosecutor followed up, asking what she
“expected would have been said” if she had been “talked to”
about not making a contribution. Doyle responded that she
would “expect to be asked, ‘Why didn’t you make the
contribution?’” The district court did not err in allowing
Doyle to answer the prosecutor’s question because defense
counsel had opened the door during cross-examination. But
even if it had been error, it was harmless. Doyle’s response
provided nothing that the jury could not have easily inferred
from her answer to defense counsel’s question. The other
testimony Whittemore identifies—Joshua Whellams’s
testimony that, given his personal and professional
relationship with Whittemore, he would have made a
contribution to Reid’s campaign if Whittemore had asked him
to do so, and Terry Reynolds’s testimony that he thought he
risked losing his job if he did not write a check to Reid’s
campaign—was not impermissibly speculative or was
similarly harmless.
D. Sufficiency of the Evidence
Finally, Whittemore argues that the evidence presented at
trial was insufficient to support his conviction. We disagree.
Sufficient evidence for only six conduit contributions of
$4,600 is required to sustain Whittemore’s conviction for
conduit contributions in excess of $25,000. See 52 U.S.C.
UNITED STATES V. WHITTEMORE 19
§ 30109(d)(1)(A) (formerly 2 U.S.C. § 437g(d)(1)(A)). The
government presented evidence that Whittemore had
promised to raise $150,000 for Senator Reid’s campaign by
March 31, 2007; evidence that the campaign contacted him to
check on his progress on March 21 and on March 27;
testimony from thirteen relatives and employees describing
the transfer of funds on March 27 and March 28; copies of
checks from Whittemore to the transferees and from the
transferees to the campaign written within days of each other;
and a new spreadsheet list of campaign donors that obscured
the employment relationships between Wingfield Nevada
Group and the donors. This evidence was more than
sufficient to support Whittemore’s conviction.
AFFIRMED.