United States v. Hill

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Criminal Action No. 19-374 (RDM)
RANI EL-SAADI, STEVAN HILL
Defendants.
MEMORANDUM OPINION AND ORDER
In this case, the government alleges two conspiracies involving eight defendants to funnel
nearly $5 million into the 2016 presidential election in violation of campaign finance laws.
Pending before the Court are motions from two of the defendants, Rani El-Saadi and Stevan Hill,
to dismiss some of the charges against them. Dkt. 83; Dkt. 106. El-Saadi and Hill are each
accused of making conduit contributions at the behest of defendant Ahmad Khawaja in violation
of 52 U.S.C. § 30122. Specifically, to avoid exceeding the cap on the amount that he was
individually permitted to contribute under federal law, Khawaja allegedly gave money to El-
Saadi and Hill, who then donated that money using their own names to political committees
associated with 2016 presidential candidates. El-Saadi and Hill seek the dismissal of the conduit
contribution charges against them on the ground that venue in this District is improper because
their alleged crimes did not occur in the District of Columbia. El-Saadi also seeks severance of
his trial from that of his co-defendants. He argues that, because he played only a small role in
one conspiracy, he will be prejudiced at trial by the disparity between the relatively small amount
of evidence implicating him in that conspiracy and the relatively large amount of evidence
against his co-defendants. For the following reasons, the Court will DENY the motions.
I. BACKGROUND
A. Statutory and Regulatory Background
In 1971, Congress enacted the Federal Election Campaign Act (“FECA”), 52 U.S.C.
§ 30101 et seq., to “remedy any actual or perceived corruption of the political process.” FEC v.
Akins, 524 U.S. 11, 14 (1998). In pursuit of that goal, FECA imposes disclosure and reporting
requirements on candidates for public office and their campaign committees, including by
requiring the identification of individual donors who contribute more than $200. 52 U.S.C.
§ 30104(b)(3)(a). As amended, FECA also imposes limits on the amounts that individuals and
organizations may contribute to a candidate for federal office and the candidate’s campaign
committees. Id. § 30116(a). And the statute prohibits foreign nationals from making
contributions “in connection with a [f]ederal, [s]tate, or local election.” Id. § 30121(a)(1)(A).
To prevent circumvention of these requirements, FECA provides that “[n]o 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.” Id. § 30122.
Some of the alleged conduit contributions in this case were made to joint fundraising
committees. FECA permits candidates and political committees to engage in joint fundraising
through committees “established solely for the purpose of joint fundraising.” 52 U.S.C.
§ 30102(e)(3)(A)(ii). Under governing Federal Election Commission regulations, participants in
such a joint fundraising effort must “either establish a separate committee or select a
participating committee[] to act as fundraising representative for all participants.” 11 C.F.R.
§ 102.17(a)(1)(i). The regulations impose various procedural requirements on joint fundraising
efforts. The participating committees must enter into a written agreement that “state[s] a formula
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for the allocation of fundraising proceeds.” Id. § 102.17(c)(1). The contribution limit for a party
donating to a joint fundraising committee is the sum of the limits for all participating
committees. Id. § 102.17(c)(5). In soliciting contributions, the joint fundraising committee must
provide a notice that includes “[t]he names of all committees participating in the joint
fundraising activity” and “[t]he allocation formula to be used for distributing joint fundraising
proceeds.” Id. § 102.17(c)(2)(i). The participants or the fundraising representative must
“establish a separate depository account to be used solely for the receipt and disbursement of the
joint fundraising proceeds,” and each participant must “amend its Statement of Organization to
reflect the account as an additional depository.” Id. § 102.17(c)(3)(i). The fundraising
representative allocates gross proceeds according to the predetermined formula, allocates
fundraising expenses, and then distributes the net proceeds to the participants. Id.
§ 102.17(c)(6)–(7). “For contribution reporting and limitation purposes, the date of receipt of a
contribution by a participating political committee is the date that the contribution is received by
the fundraising representative.” Id. § 102.17(c)(3)(iii).
“All contributions deposited” by a joint fundraising committee “must be permissible
under” FECA. Id. § 102.17(c)(3)(i). “The fundraising representative and participating
committees [must] screen all contributions received to insure that the prohibitions and limitations
[in FECA and its implementing regulations] are observed,” including the prohibition on conduit
contributions. Id. § 102.17(c)(4)(i) (emphasis added); see also id. § 110.4(b). With respect to
reporting requirements, both the fundraising representative and the participating political
committee must report contributions to the joint fundraising effort. Id. § 102.17(c)(8)(i). “After
distribution of net proceeds, each participating political committee shall report its share of net
proceeds received as a transfer-in from the fundraising representative.” Id. § 102.17(c)(8)(i)(B).
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B. Factual and Procedural Background
In this case, the government brings a 64-page, 53-count indictment against eight
defendants alleging two conspiracies to make excessive and conduit contributions in violation of
FECA during the 2016 presidential campaign. The indictment alleges that, in the first
conspiracy, defendant George Nader funneled $4.9 million in foreign funds to Khawaja (and
Khawaja’s company), who then made more than $3.5 million in unlawful conduit contributions
to four political committees, including the fundraising committees of a 2016 presidential
candidate. 1 Dkt. 1 at 6–7 (Indictment ¶¶ 28a–28e). Nader and Khawaja allegedly hoped that
these contributions would grant them access to and influence with this presidential candidate,
which they could then parlay to gain favor with and financial support from the government of a
foreign country. Id. at 5–6 (Indictment ¶¶ 24–25). The indictment does not allege that El-Saadi
or Hill participated in that first conspiracy.
Count 13 of the indictment charges a second conspiracy in which Khawaja allegedly
made excessive contributions to several political committees, with six of his associates, including
El-Saadi and Hill, acting as conduits. Id. at 27–28 (Indictment ¶¶ 53a–53c). In all, Khawaja
allegedly funneled more than $1.8 million to his co-conspirators for the purpose of making
conduit contributions, again in the hopes of gaining political influence. Id. at 29 (Indictment
¶¶ 54, 57a). In particular, in September 2016, Khawaja arranged to host a private fundraiser for
a presidential candidate in Las Vegas, Nevada, which required him to contribute or to raise
$500,000 for that candidate’s political committees. Id. at 30 (Indictment ¶ 58a). Because
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The indictment does not reveal the identities of the presidential candidates and political
committees involved, referring to them as, e.g., Candidate 1 or Political Committee 5. Likewise,
Khawaja’s business is referenced as Company A. The Court adopts the same naming
conventions in this opinion.
4
Khawaja could not contribute that amount himself without exceeding contribution limits, he
allegedly provided funds to his co-conspirators to contribute in their names. Id. at 30–31
(Indictment ¶ 58a). As relevant here, on or about August 6, 2016, Khawaja allegedly gave Hill a
check for $30,000, and on or about August 18, 2016, Khawaja allegedly gave Hill another check
for an additional $75,000. Id. at 31 (Indictment ¶ 58c). On or about August 28, 2016, Hill
allegedly sent a $100,000 check to a joint fundraising committee that the indictment refers to as
Political Committee 2. Id. Although Hill made this donation in his own name, the indictment
alleges that he did so “with monies funneled to him by KHAWAJA for the purpose of making
the contribution and to avoid and exceed the personal contribution limits set by federal law.” Id.
Likewise, Khawaja’s company allegedly gave $148,965 to El-Saadi’s company on September 9,
2016, in connection with the Las Vegas fundraiser. Id. at 33 (Indictment ¶ 58g). On or about the
same day, El-Saadi transferred $150,000 from his company’s account to his personal account
and then wrote a personal check for $150,000 to Political Committee 2. Id. Although El-Saadi
made this donation in his own name, the indictment alleges that he did so “with monies funneled
to him by KHAWAJA for the purpose of making the contribution and to avoid and exceed the
personal contribution limits set by federal law.” Id.
Although El-Saadi is accused of making only that single conduit contribution, the
indictment alleges that Hill later made two additional conduit contributions as well. On or about
June 16, 2017, Hill wrote a check for $50,000 to Political Committee 6, and on or about June 19,
2017, Khawaja sent $60,000 to Hill. Id. at 35 (Indictment ¶ 58m). Similarly, on or about
January 19, 2018, Khawaja gave Hill $50,000, and on or about January 28, 2018, Hill wrote a
$50,000 check to Political Committee 7 in connection with a private fundraiser for an elected
official that Khawaja hosted at his home. Id. at 36–37 (Indictment ¶ 58q). The indictment
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alleges that, although Hill made these contributions in his own name, they were both conduit
contributions made on behalf of Khawaja, in order to allow Khawaja to exceed contribution
limits. Id.
El-Saadi and Hill face not only the conspiracy charge in Count 13, but also substantive
charges for making conduit contributions. Specifically, the indictment charges El-Saadi in Count
18 with permitting his name to be used to effect (and aiding and abetting Khawaja in making)
conduit contributions to Political Committee 2 and Political Committee 5, id. at 40–41
(Indictment ¶¶ 67–68); Hill in Count 19 with permitting his name to be used to effect (and aiding
and abetting Khawaja in making) conduit contributions to Political Committee 2 and Political
Committee 5, id. at 41 (Indictment ¶¶ 69–70); Hill in Count 27 with permitting his name to be
used to effect (and aiding and abetting Khawaja in making) conduit contributions to Political
Committee 6, id. at 46 (Indictment ¶¶ 85–86); and Hill in Count 41 with permitting his name to
be used to effect (and aiding and abetting Khawaja in making) conduit contributions to Political
Committee 7, id. at 55 (Indictment ¶¶ 113–14). The indictment alleges that El-Saadi and Hill
committed each of these crimes “in the District of Columbia and elsewhere.” Id. at 40–41, 46,
55 (Indictment ¶¶ 68,70, 86, 114).
El-Saadi moves to dismiss the conduit contribution charge in Count 18—but not the
conspiracy charge in Count 13—on the ground that venue is improper in the District of
Columbia. Dkt. 83; see also Dkt. 93. He also asks the Court to sever his trial on the remaining
conspiracy charge from the trial of his co-defendants. Dkt. 83. The government opposes the
motion. Dkt. 92. The Court heard argument on the motion on December 7, 2020. See Minute
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Entry (Dec. 7, 2020); Dkt. 122. Following that hearing, Hill moved to dismiss Counts 19, 2 27,
and 41. Dkt. 106. In support of the motion, Hill does not present any additional arguments of
his own but simply adopts the arguments that El-Saadi made in his motion. Dkt. 107. The
government opposes Hill’s motion as well. Dkt. 111. On June 15, 2021, the Court held an
additional hearing on the motions and sought additional briefing from the parties on the question
of how Political Committee 2’s status as a joint fundraising committee might affect the venue
analysis. See Minute Entry (June 15, 2021); Dkt. 121. The parties have filed their supplemental
briefs, Dkt. 123; Dkt. 124, and the motions are now ripe for decision.
II. ANALYSIS
A. Motions to Dismiss for Lack of Venue
El-Saadi (and, by extension, Hill) argues that the conduit contribution charge must be
dismissed for improper venue. “Proper venue in criminal proceedings was a matter of concern to
the Nation’s founders,” who protested in the Declaration of Independence that King George III
“transport[ed] colonists ‘beyond Seas to be tried.’” United States v. Cabrales, 524 U.S. 1, 6
(1998) (quoting The Declaration of Independence, para. 21 (1776)). To put an end to such
practices, the Constitution protects criminal defendants’ venue rights not once but twice. U.S.
Const. art. III, § 2, cl. 3 provides that “Trial of all Crimes . . . shall be held in the State where the
said Crimes shall have been committed,” and the Sixth Amendment guarantees a trial “by an
impartial jury of the State and district wherein the crime shall have been committed.” 3 Mirroring
2
Hill’s motion actually seeks dismissal of Count 17, but since Hill is not charged in Count 17,
the Court will construe the motion as seeking to dismiss Count 19, in which Hill is charged.
3
Although the language of the Sixth Amendment, when read literally, “specifies the place
where the jurors are to be selected rather than the place of trial,” courts have “never” given that
distinction “any weight,” because “the requirement that the jury be chosen from the state and
district where the crime was committed presupposes that the jury will sit where it is chosen,”
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that constitutional language, Rule 18 of the Federal Rules of Criminal Procedure dictates that
“the government must prosecute an offense in a district where the offense was committed.” Fed.
R. Crim. P. 18. In a criminal trial, considerations of venue are not merely procedural but rather
“raise deep issues of public policy.” United States v. Johnson, 323 U.S. 273, 276 (1944).
To determine whether venue is proper, the Court looks to “the locus delicti” (that is, the
scene of the crime), which “must be determined from the nature of the crime alleged and the
location of the act or acts constituting it.” United States v. Morgan, 393 F.3d 192, 196 (D.C. Cir.
2004) (quotation marks and citation omitted). The Court “must initially identify the conduct
constituting the offense (the nature of the crime) and then discern the location of the commission
of the criminal acts.” Id. (quotation marks and citation omitted). “Venue may be proper in more
than one district,” United States v. Lam Kwong-Wah, 924 F.2d 298, 301 (D.C. Cir. 1991)
(citation omitted), so long as “the acts constituting the crime and the nature of the crime charged
implicate more than one location.” United States v. Lange, 834 F.3d 58, 68 (2d Cir. 2016)
(quotation marks and citation omitted). For such “continuing offenses,” venue is proper where
the offense “was begun, continued, or completed.” 18 U.S.C. § 3237(a); see also United States
v. Chin, 981 F.2d 1275, 1278 (D.C. Cir. 1992) (“It is well established that continuing offenses
may be prosecuted in any district in which they ‘continued.’”). At trial, “[t]he government bears
the burden of establishing by a preponderance of the evidence that venue is proper with respect
to each count charged against a defendant.” Lam Kwong-Wah, 924 F.2d at 301 (citation
omitted). 4
rather than the defendant being hauled across the sea with the jury in tow. United States v.
Morgan, 393 F.3d 192, 195 (D.C. Cir. 2004) (quotation marks and citation omitted).
4
Caselaw in this Circuit makes clear that “[v]enue is an issue that normally must be submitted
to the jury” and that the government must prove venue by a preponderance of the evidence. Lam
8
El-Saadi argues that venue is improper in the District of Columbia for the conduit
contribution charge in Count 18 because he lives and works in Los Angeles and the fundraiser he
allegedly attended was in New Mexico. He argues that the proper venue for a conduit
contribution charge under 52 U.S.C. § 30122 is “where the contribution was made.” Dkt. 83-1 at
13. And he asserts that “[n]owhere does the [i]ndictment . . . suggest that [El-Saadi] made a
contribution while in Washington, D.C., or that he had ever traveled to the District during the
relevant time frame.” Id. at 13–14. In a footnote, El-Saadi also expresses confusion as to why
he was charged with making conduit contributions to both Political Committee 2 and Political
Committee 5, since the narrative allegations in the indictment describe only a contribution to
Political Committee 2. Id. at 10–11 n.4.
The government disagrees on both the law and the facts. The government argues, first,
that a conduit contribution charge “is properly venued wherever the campaign contribution was
sent, received, or accepted.” Dkt. 92 at 2. The government contends that El-Saadi made a
contribution to Political Committee 2, which was a joint fundraising committee that included
Kwong-Wah, 924 F.2d at 301. It is less clear what standard governs a pretrial motion to dismiss
on venue grounds in a criminal case or whether the Court must resolve such a motion based on
the face of the indictment or may also consult other evidence. Federal Rule of Criminal
Procedure 12 provides that a motion asserting improper venue must be raised before trial where
“the basis for the motion is then reasonably available and the motion can be determined without
a trial on the merits.” Fed. R. Crim. P. 12(b)(3). That language seems to contemplate that the
Court may consider evidence beyond the face of the indictment where such evidence is
“reasonably available.” Id. In his motion, El-Saadi points to both the allegations in the
indictment and “the discovery produced by the government.” Dkt. 83-1 at 13. And decisions in
this District resolving pretrial motions to dismiss for improper venue in criminal cases routinely
rely on allegations outside the four corners of the indictment. See, e.g., United States v. Han,
280 F. Supp. 3d 144, 149–52 (D.D.C. 2017); United States v. Gamble, No. 19-cr-348, 2020 WL
3605829, at *3–5 (D.D.C. July 2, 2020). The Court thus concludes that it should grant
Defendants’ motions to dismiss only if the “reasonably available” evidence shows that the
government could not prove by a preponderance of the evidence that the charged offenses
occurred in the District of Columbia.
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Political Committee 5. Id. at 3. El-Saadi’s contribution to Political Committee 2 thus resulted in
more than $33,000 passing to Political Committee 5. And Political Committee 5 was located in
the District of Columbia. 5 Id. Accordingly, the government argues that venue is proper in the
District of Columbia because “Political Committee 5 accepted, received for its benefit, and
reported El-Saadi’s contribution in Washington, D.C.” Id.In reply, El Saadi makes an alternative argument. He contends that, even if venue is
proper not only where the contribution was made, but also where the contribution was accepted,
venue is still improper in the District of Columbia because “the government has effectively
conceded that the alleged contribution in Count 18 was accepted and deposited by Political
Committee 2 before funds could be transferred to Political Committee 5” in the District of
Columbia. Dkt. 93 at 9. According to El-Saadi, “the illegal contribution was complete, at latest,
when Political Committee 2 deposited the check, not when funds were subsequently transferred.”
Id.To determine whether venue is proper in the District of Columbia for the conduit
contribution charge, the Court “must initially identify the conduct constituting the offense” of
making a conduit contribution “and then [must] discern the location of the commission of the
criminal acts.” Morgan, 393 F.3d at 196 (quotation marks and citation omitted). The parties cite
5
The indictment does not specify where Political Committee 5 is located, but El-Saadi does not
contest, as a factual matter, that it is based in Washington, D.C., nor does he argue that the
indictment is deficient for omitting that detail. See Dkt. 93 at 5; cf. United States v. Verrusio,
762 F.3d 1, 13 (D.C. Cir. 2014) (“[T]he validity of an indictment is not a question of whether it
could have been more definite and certain.” (quotation marks and citation omitted)). Further,
because Hill joined El-Saadi’s motion without submitting briefing of his own, he has not called
into question the government’s assertions that Political Committee 6 and Political Committee 7
are physically located in the District of Columbia. Dkt. 111 at 5–6.
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to three out-of-circuit cases that address the questions of what conduct is required to make a
conduit contribution and, by extension, at which point in the process of making a conduit
contribution the crime has been completed. Although helpful to the Court’s consideration, those
cases do not clearly answer the question presented here.
The government relies primarily on the Second Circuit’s decision in United States v.
Chestnut, 533 F.2d 40 (2d Cir. 1975). In Chestnut, the Second Circuit held that the crime of
“receiving and accepting of an unlawful contribution” occurs at the place of deposit, because
“the deposit of the checks . . . constitute[s] the ultimate essential element of the offense of
accepting and receiving an unlawful contribution.” Id. at 47. The government thus contends that
El Saadi’s conduit contribution occurred, in part, in the District of Columbia because Political
Committee 5 deposited its portion of his check in the District. The obvious problem with the
government’s reliance on Chestnut is that El-Saadi is not charged with “the offense of accepting
and receiving an unlawful contribution.” Id.The conduit contribution statute delineates the elements of three separate offenses:
(1) “mak[ing] a conduit contribution in the name of another person;” (2) “knowingly permit[ting]
[one’s] name to be used to effect such a contribution;” and (3) “knowingly accept[ing] a
contribution made by one person in the name of another.” 52 U.S.C. § 30122. The defendant in
Chestnut was charged with the third type of offense, which clearly requires receipt of the
contribution. Here, however, El-Saadi is charged with aiding and abetting the first type of
offense and with himself committing the second type of offense. The first two types of offenses
may or may not require the political committee to receive or deposit the funds before the crime is
completed, but Chestnut does not answer—or even address—that question. Instead, Chestnut
focuses exclusively on the third type of offense, which is not charged here.
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The government responds that Chestnut is relevant to this case because the indictment
alleges that El-Saadi and Hill “willfully caused the [political committees] to unwittingly accept
contributions made by one person in the name of another person.” Dkt. 1 at 41 (Indictment
¶¶ 68, 70). But because the acceptance of the contributions was “unwitting,” the indictment does
not allege that the political committees committed—or that El-Saadi aided and abetted—the third
type of offense under the statute, which requires “knowing[] accept[ance].” 52 U.S.C. § 30122.
Chestnut thus dealt with a different type of offense than the one charged here, and the
government’s reliance on Chestnut is unavailing.
For his part, El-Saadi relies on a pair of cases from the Third Circuit that addressed the
elements of making a conduit contribution: United States v. Hankin, 607 F.2d 611 (3d Cir. 1979),
and United States v. Passodelis, 615 F.2d 975 (3d Cir. 1980). In Hankin, a defendant challenged
his conviction for making conduit contributions on statute of limitations grounds. 607 F.2d at
612. The record indicated that the defendant had sent, and the campaign had received, the
conduit contribution outside the limitations period, but that the campaign’s depositing of the
check fell within the limitations period. Id. at 613. Accordingly, Hankin’s conviction could be
sustained only if the depositing of the check was part of the conduct constituting the crime. The
Third Circuit held that the crime was completed and the statute of limitations thus began to run
“when the contributions were made,” which was “prior to the day of the . . . deposit.” Id. at 615.
But the court left open the question of “whether the crime was completed on the date of mailing
or on the date of receipt.” Id.The Third Circuit concluded that the conduit contribution was complete prior to deposit
for several reasons. First, it explained that in other areas of the law, including contract and tax
cases, courts deem payments completed either on mailing or (more frequently) on delivery,
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without requiring a deposit. Id. at 613–14. The court also placed substantial weight on FECA’s
definition of “contribution.” Id. at 614. At the time, FECA defined a contribution, in part, as “a
written contract, promise or agreement, whether or not legally enforceable, to make a
contribution.” Id. (citing 2 U.S.C. § 431(e)(2) (1976)). The Third Circuit reasoned that, if a
contribution need not be legally enforceable to qualify under the statute, then the crime was
completed before the campaign committee deposited the funds. Id.The Third Circuit’s analysis in Hankin is unhelpful for resolving the present dispute for
several reasons. First and most importantly, as the government points out in its supplemental
brief, Dkt. 124 at 6, the defendant in Hankin had been charged only with making conduit
contributions in the names of four other people, 607 F.3d at 612. As the principal in the conduit
contribution scheme, the defendant was not charged with “knowingly permit[ting] [his] name to
be used to effect such a contribution.” 52 U.S.C. § 30122. The Court concludes that the conduct
constituting the offense of “making” a contribution may differ from the conduct necessary to
“effect” a contribution, as is alleged in this case.
The Court is unpersuaded by other aspects of the analysis in Hankin as well. In the more
than forty years since Hankin was decided, Congress has amended FECA several times,
including by amending the definition of “contribution.” In its current form, the statutory
definition no longer includes any of the language on which the Hankin court relied. See 52
U.S.C. § 30101(8)(A)(i). That is, the current definition no longer explicitly encompasses legally
unenforceable or promised future contributions. Id. These changes to the statutory text cast
considerable doubt on the continuing validity of the Third Circuit’s reasoning in Hankin. Nor is
the Court convinced by the suggestion that Congress may have intended for the crime of making
a conduit contribution to be complete upon the sending of the contribution because “another
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provision punishes the receipt of illegal contributions.” Hankin, 607 F.2d at 615. The primary
distinction between the crime of making a conduit contribution and the crime of willfully
accepting a conduit contribution is the identity of the actor, rather than the stage of the donation
process. Nothing about the statutory text would seem to foreclose the possibility that a donor
could commit the crime of making a conduit contribution and a campaign could commit the
crime of willfully accepting a conduit contribution at the exact same time—perhaps upon receipt
of the donation or maybe upon deposit.
Finally, the government argued in Hankin that a conduit contribution is not complete
until deposit because, before then, it remains uncertain whether the political committee will
accept the gift. In the Third Circuit’s view, however, because the committee could have
theoretically rejected the contribution even after deposit, “the contribution was no more
irrevocable on the date of deposit than on the date of mailing, the date of receipt, or two weeks
after the date of deposit.” Id. at 614. But nothing in FECA suggests that a person could be
convicted of making a conduit contribution if his check were lost in the mail and never received
by the political committee. On the contrary, the statute’s current definition of “contribution,”
with its reference to a “deposit,” might fairly be read to suggest that the contribution remains
incomplete at the time of sending. Indeed, at oral argument, El-Saadi’s counsel seemed to
concede that a check lost in the mail or rejected immediately upon delivery would likely
constitute an attempted conduit contribution, rather than a completed one. Dkt. 122 at 29–30.
Here again, the Court finds the reasoning of Hankin less than conclusive on the questions
presented in this case.
Four months later, the Third Circuit, relying on the reasoning of Hankin, overturned a
conviction for making excessive contributions on venue grounds in Passodelis, 615 F.2d at 979.
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The Third Circuit began its analysis by “ascertain[ing] the definitions of the crimes.” Id. at 977.
To that end, the court observed that “the primary operative element” of making an excessive
contribution is the same as that of making a conduit contribution: “the making of a contribution.”
Id. Given this similarity, the Court concluded that it was “bound by the holding in Hankin that
the illegal making of a contribution is complete before the contribution is deposited by the
recipient.” Id. Applying that rule, the Third Circuit held that venue had been improper in the
Middle District of Pennsylvania. Id. at 977–78. Although the testimony at trial was unclear, the
record indicated that the defendant in the case may have handed off his excessive contribution in
the Western District of Pennsylvania to one Seymore Heyison, who in turn delivered the checks
to the campaign in the Middle District. Id. at 978. According to the Third Circuit, “it would
appear that if Heyison received the checks in the Western District from Passodelis, he did so in
his capacity as an agent” for the campaign in question. Id. As such, “[i]f Heyison received the
checks in the Western District, the crimes were complete in the Western District.” Id. On that
basis, the court concluded that the government had failed to carry its burden of showing that
venue was proper in the Middle District.
As an initial matter, the Court is uncertain that the Third Circuit was correct to assume
that the conduct required to complete an excessive contribution is always equivalent to the
conduct required to complete a conduit contribution. But even granting that the same analysis
should apply to both types of offenses, the court in Passodelis simply adopted the reasoning of
Hankin about when a contribution is completed, and thus Passodelis is no more persuasive than
Hankin on that issue. Most significantly, Passodelis, like Hankin, dealt with the crime of making
a contribution (whether conduit or excessive), rather than of effecting one—an important
difference in the operative verbs. See Chestnut, 533 F.2d at 46–47 (“One helpful technique” for
15
determining “the nature of the offense and the location of the acts constituting it” is to “study the
key verbs which define the criminal offense in the statute.”).
Without definitive guidance from the limited caselaw, the Court turns to the text of the
statute to determine what conduct constitutes an unlawful conduit contribution. As relevant here,
a person violates the conduit contribution prohibition if he “make[s] a contribution in the name
of another person or knowingly permits his name to be used to effect such a contribution.” 52
U.S.C. § 30122. El-Saadi and Hill are charged with allowing their names to be used to effect
conduit contributions and with aiding and abetting Khawaja in the making of conduit
contributions. The operative question, then, is what it means to “make a contribution” or to
“effect such a contribution” and, more to the point, when the act of making or effecting a
contribution is completed. Id. For the following reasons, the Court concludes that the offense of
knowingly permitting one’s name to be used to “effect” a conduit contribution encompasses both
the receipt and the acceptance (as opposed to rejection) of the contribution. As such, venue lies
wherever the contribution was sent, received, or accepted.
First, the Court considers whether the offenses of making or effecting a conduit
contribution encompass the political committee’s receipt of that contribution. El-Saadi argues
that venue lies only where the contribution was “made,” by which he appears to mean the
location from which the contribution was sent, rather than where it was received (at least in cases
where those locations are different). See Dkt. 123 at 3 (distinguishing between where a
contribution is “made” and where it is “received”); Dkt. 93 at 7. FECA’s current definition of
“contribution” forecloses El-Saadi’s argument. As the Third Circuit noted in Hankin, FECA
originally defined “contribution” to include not only “a gift, subscription, loan, advance, or
deposit of money, or anything of value” but also “a contract, promise, or agreement, express or
16
implied, whether or not legally enforceable, to make a contribution.” Federal Election Campaign
Act of 1971, Pub. L. No. 92-225, Title II, § 201, 86 Stat. 3, 8 (1972). In the 1979 amendments to
FECA, however, Congress eliminated the portions of the definition encompassing agreements to
make future contributions. See Federal Election Campaign Act Amendments of 1979, Pub. L.
No. 96-187, Title I, § 101, 93 Stat. 1339, 1340 (1980). “When Congress acts to amend a statute,
[courts] presume it intends its amendment to have real and substantial effect.” Stone v. I.N.S.,
514 U.S. 386, 397 (1995); see also Ross v. Blake, 136 S. Ct. 1850, 1857–58 (2016) (interpreting
a statute based in part on its amendment history). The 1979 amendments to FECA’s definition
of “contribution” have important implications for determining where venue lies for a conduit
contribution charge. Because the amendments eliminated inchoate payments to a campaign from
the statute’s coverage, the offenses of making and of effecting a contribution remain incomplete
at least until the contribution is received. The legislative history of the 1979 amendments
confirms this understanding. The House Report accompanying the amendments explains that
“[t]he provision in the [1971] Act making a written contract, promise, or pledge a contribution is
deleted,” such that “pledges will be reported only when the money or goods or services actually
have been received by the committee.” H.R. Rep. 96-422, at 7 (1979). A check sent to a
political committee thus does not become a “contribution” within the meaning of FECA until
that check is received, and, accordingly, the offenses of making and of effecting a conduit
contribution require not only the sending but also the receiving of the donation.
Of course, in some circumstances, such as where a check is handed over to a campaign
representative in-person, the sending and the receiving of the contribution occur at the same time
and in the same place. But in other circumstances, such as where the contribution is mailed, the
sending of the contribution may occur in a different jurisdiction than the political committee’s
17
receipt of that contribution. Because sending and receiving may happen in different places, the
conduct required to make or effect a conduit contribution can “implicate more than one
location,” Lange, 834 F.3d at 68–69, such that venue lies where the offense “was begun,
continued, or completed,” 18 U.S.C. § 3237(a). At a minimum, then, venue for a conduit
contribution charge lies where the contribution was sent and where it was received. El-Saadi’s
argument that venue is proper only where the contribution was sent is thus unavailing.
Next, the Court considers whether venue for a conduit contribution charge also lies where
a political committee accepts (rather than rejects) the contribution. The government contends
that the offense is not complete until the political committee “accept[s] [and] receive[s] for its
benefit” the conduit contribution. Dkt. 92 at 3. As already explained, El-Saadi and Hill are
charged both with “knowingly permit[ting] [their] name[s] to be used to effect” a conduit
contribution and with aiding and abetting Khawaja in “mak[ing] a contribution in the name of
another person.” 52 U.S.C. § 30122. The Court need not consider whether the offense of
making of a conduit contribution encompasses the acceptance of that contribution, because the
Court concludes that a contribution is not effected until the political committee accepts it.
Black’s Law Dictionary defines “effect” as “[t]o bring about” or “to make happen.” Effect,
Black’s Law Dictionary (11th ed. 2019). And Black’s provides the following example of the
correct usage: “the improper notice did not effect a timely appeal.” Id. Likewise, the Oxford
English Dictionary defines “effect” as “[t]o bring about,” “to accomplish,” or “[t]o produce.”
Effect, Oxford English Dictionary (3d ed. 2008). These definitions make clear that a conduit
contribution is not “effected” until it is “brought about” or “accomplished.” And the offense of
permitting one’s name to be used for a conduit contribution is not “brought about” or
“accomplished” until the recipient political committee either wittingly or, as here, unwittingly
18
accepts that contribution in the name of a straw donor acting on behalf of an undisclosed
principal. As the Court explained at oral argument, “[t]he effecting of the contribution is
contingent on the unwitting committee being willing to accept it,” because “[y]ou can’t effect the
contribution if the committee’s going to say no.” Dkt. 122 at 27.
Shakespeare’s use of “effect” is illustrative of this point. In Henry VI, Part III, Warwick
vows to “cross the sea [t]o effect [a] marriage” between King Edward and Lady Bona of France.
William Shakespeare, Henry VI, Part III, act 2, sc. 6, l. 98–99. When would that marriage have
been effected? Certainly, the marriage was not effected when Warwick set sail to deliver the
proposal to King Louis XI of France. Nor was the marriage effected upon Louis’s agreement in
principle to the match. Rather, upon returning to England, Warwick discovered that Edward had
decided to marry Lady Grey instead, and the marriage to Lady Bona was never effected. Suffice
it to say, a marriage cannot be effected without both spouses-to-be saying “I do.” So too with
conduit contributions. The subterfuge is not effected until the recipient political committee
decides to accept the money under the false pretense that the funds came from the straw donor.
The purpose of the prohibition on conduit contributions confirms the Court’s textual
analysis. As the Ninth Circuit explained in an opinion interpreting the ban on conduit
contributions, FECA “sought to regulate campaign finance through a regime of disclosure
requirements.” United States v. O’Donnell, 608 F.3d 546, 553 (9th Cir. 2010). Conduit
contributions undermine that goal by “shielding the identities of true contributors.” Id. FECA
thus banned conduit contributions to “ensure the complete and accurate disclosure of the
contributors who finance federal elections.” Id. at 553–54. And, as the allegations in this case
illustrate, the ban on conduit contributions is also necessary to prevent circumvention of FECA’s
contribution limits and its prohibition of foreign contributions. Because Congress’s purpose in
19
banning conduit contributions was to prevent the principal in the scheme from circumventing
FECA’s other requirements, it stands to reason that “effecting” a conduit contribution requires
inducing the recipient political committee to accept the contribution as though it came from the
conduit, rather than the true donor.
Bank fraud cases provide a useful analogy. In United States v. Teman, a defendant was
charged with bank fraud for depositing 27 unauthorized checks, totaling $297,000, at a Bank of
America location in Miami Beach, Florida. United States v. Teman, 465 F. Supp. 3d 277, 310
(S.D.N.Y. 2020). One of the drawee banks conducted a fraud review in New York, before Bank
of America lifted a hold on the funds and released them to the defendant. Id. The court held that
the fraud review in New York was sufficient to establish venue because “Signature Bank’s
review occurred during the pendency of the scheme” and was “a hurdle [the defendant] needed
to clear by fraudulent means to gain the money he sought.” Id. at 318–19; see also United States
v. Bankole, 39 F. App’x 839, 842 (4th Cir. 2002) (finding venue proper in Virginia where parties
to fraudulent transaction were in Maryland and New Hampshire but the credit union that
processed the debit transaction “operate[d] its accounting processing” in Virginia). Likewise, a
political committee’s acceptance of a conduit contribution, as though it was, in fact, made by the
conduit, is a necessary hurdle that a straw donor must clear before the unlawful contribution has
been effected.
The Court’s conclusion that venue is proper where a conduit contribution was received or
accepted resolves Hill’s motion with respect to the conduit contributions alleged in Counts 27
and 41. Count 27 alleges that Hill made a conduit contribution directly to Political Committee 6
in 2017, see Dkt. 1 at 46 (Indictment ¶ 86), while Count 41 alleges that he made a conduit
contribution directly to Political Committee 7 in 2018, id. at 55 (Indictment ¶ 114). The
20
indictment does not provide additional details with respect to the 2017 contribution but indicates
that the 2018 contribution came “in connection with an event hosted by KHAWAJA at his home
[in California] for Elected Official 1.” Id. at 36 (Indictment ¶ 58q). In opposing Hill’s motion,
the government contends, with respect to Count 27, that “the evidence at trial will establish that
Political Committee 6 was physically located in the District of Columbia and that it accepted,
received for its benefit, and reported Defendant Hill’s illegal contribution in the District of
Columbia.” Dkt. 111 at 5. Similarly, with respect to Count 41, although the fundraiser in
question occurred in California, the government again argues that “the evidence at trial will
establish that Political Committee 7 was physically located in the District of Columbia and that it
accepted, received for its benefit, and reported Defendant Hill’s illegal contribution in the
District of Columbia.” Id. at 6. Although the exact circumstances surrounding the conduit
contributions alleged in Counts 27 and 41 are unclear from the face of the indictment, the
recipients of those contributions are purportedly based in the District of Columbia. If the receipt
or acceptance of those contributions in fact occurred in the District of Columbia, then venue
would be proper. The government will ultimately need to prove to the jury, by a preponderance
of the evidence, where the contribution was received and accepted. See Lam Kwong-Wah, 924
F.2d at 301. At this juncture of the case, however, without the benefit of a record established at a
trial, the Court cannot conclude that venue in the District of Columbia is improper. See Fed. R.
Crim. P. 12(b)(3)(A)(i). Hill’s motion to dismiss will thus be denied with respect to Counts 27
and 41.
Matters are more complicated with respect to El-Saadi’s alleged conduit contribution in
Count 18 and Hill’s alleged conduit contribution in Count 19. The record suggests that Political
Committee 2 received the conduit contributions in Counts 18 and 19 outside the District of
21
Columbia. The connection to the District of Columbia, according to the government, is that
Political Committee 2, which was a joint fundraising committee that included Political
Committee 5, disbursed a portion of these contributions to Political Committee 5, which is based
in the District of Columbia. See Dkt. 92 at 3. El-Saadi argues that, even if venue is proper
where his contribution was initially received by Political Committee 2, “the subsequent transfer
of that contribution” to Political Committee 5 in the District of Columbia “does not establish
venue.” Dkt. 123 at 3. According to El-Saadi, “[w]hile Political Committee 5 may have later
received a portion of the alleged contribution, that disbursement is too far removed from . . .
Political Committee 2’s receipt of the contribution to establish venue.” Id. at 8.
At least some aspects of the regulations governing joint fundraising efforts support El-
Saadi’s position that a contribution to a joint fundraising committee outside the District of
Columbia is neither synonymous nor simultaneous with a contribution to a participating
committee within the District of Columbia. Most significantly, the regulations require the joint
fundraising committee to “establish a separate depository account to be used solely for the
receipt and disbursement of the joint fundraising proceeds” and permits the joint fundraising
committee to “delay distribution of the fundraising proceeds to the participants until all
contributions are received and all expenses are paid.” 11 C.F.R. § 102.17(c)(3). An initial
contribution to a joint fundraising committee is thus, in a sense, separated by both time (the
possibility of delayed disbursement) and space (the separate account) from the eventual
distribution of funds to the participating committees. What’s more, the participants in the joint
fundraising effort report their respective portions of the net proceeds as “a transfer-in from the
fundraising representative.” Id. § 102.17(c)(8)(i)(B). That is potentially relevant because the
1979 amendments to FECA eliminated the portion of the statutory definition of “contribution”
22
that encompassed “a transfer of funds between political committees.” Compare Federal Election
Campaign Act of 1971, Pub. L. No. 92-225, Title II, § 201, 86 Stat. 3, 8 (1972) with Federal
Election Campaign Act Amendments of 1979, Pub. L. No. 96-187, Title I, § 101, 93 Stat. 1339,
1340 (1980). The House Report explains that the term “transfer,” rather than the term
“contribution,” covers “funds flowing between or among affiliated committees, committees
authorized by the same candidate, or political party committees regardless of whether such
committees are affiliated.” H.R. Rep. 96-422, at 7 (1979). Although the legislative history also
mentions that the portion of the amendment dealing with transfers was not intended to be
substantive, id., the change in the statutory text at least clarifies that a contribution is complete
before any later transfer between affiliated committees occurs. But it’s unclear whether
disbursements from joint fundraising efforts, like Political Committee 2, are the sort of transfers
that Congress meant to excluded from the statutory definition of “contribution.”
The government responds that “the collection and disbursement of funds by Political
Committee 2 are not as separate as Defendant El-Saadi urges.” Dkt. 124 at 13. In support of its
argument, the government relies on several other portions of the governing regulation. Most
significantly, the regulation provides that, for reporting purposes, “the date of receipt of a
contribution by a participating political committee is the date that the contribution is received by
the fundraising representative.” 11 C.F.R. § 102.17(c)(3)(iii). Thus, even if the physical
disbursement of funds is delayed, Political Committee 2 and Political Committee 5 received the
conduit contributions at the same time in the eyes of the law. And the regulation also requires
participating committees to “amend [their] Statement[s] of Organization to reflect” the joint
fundraising committee’s separate depository account “as an additional depository.” Id.§ 102.17(c)(3)(i). Taken together, these provisions suggest, contrary to El-Saadi’s position, that
23
the initial receipt of the contribution by the joint fundraising committee is separated by neither
time nor space from the participants’ receipt of their respective portions of the same funds. In
the government’s view, other aspects of joint fundraising committees, moreover, indicate that
they are best understood as pass-through entities. For example, the joint fundraising committee
must disburse funds based on a predetermined formula, id. § 102.17(c)(1), and both the names of
the participating committees and the distribution formula must be disclosed in all solicitations,
id. § 102.17(c)(2). A joint fundraising committee thus functions principally to reduce transaction
costs by allowing donors to write one check that is divided up among multiple participants. See
Michael S. Kang, The Brave New World of Party Campaign Finance Law, 101 Cornell L. Rev.
531, 559–60 (2016). But the joint fundraising committee would have no purpose—and indeed
could not even exist—in the absence of the component committees. And the only reason to give
money to a joint fundraising effort is to effect a contribution to the participating committees.
Given the nature of joint fundraising committees, the mere fact that the alleged conduit
contributions from El-Saadi and Hill passed through Political Committee 2 does not preclude
venue in the District of Columbia, to the extent that the government can prove at trial that the
contribution was either received or accepted by Political Committee 5 in the District of
Columbia.
The question, however, remains where Political Committee 5 received or accepted El-
Saadi’s alleged conduit contribution in Count 18 and Hill’s alleged conduit contribution in Count
19. With respect to receipt, the government does not seem to contest that Political Committee 2
received the contributions outside the District of Columbia. And under the regulation, Political
Committee 5 received those contributions at the same time and place as Political Committee 2.
24
See 11 C.F.R. § 102.17(c)(3)(iii). Venue in this District thus cannot be premised on Political
Committee 5’s receipt of the conduit contributions. 6
That leaves where the conduit contribution was accepted. The regulation requires both
the joint fundraising representative and the participating committees to “screen all contributions
received to insure that the prohibitions and limitations [in FECA and its implementing
regulations] are observed,” including the prohibition on conduit contributions. Id.§ 102.17(c)(4)(i). If Political Committee 5 conducted this screening in the District of Columbia,
just as the bank in Teman conducted its fraud review in New York, that would be sufficient to
support venue in this Court. The indictment does not identify where Political Committee 5
reviewed the alleged conduit contributions in Counts 18 and 19 for compliance with FECA. But
the indictment does allege that the offenses occurred “in the District of Columbia and
elsewhere,” see Dkt. 1 at 40 – 41 (Indictment ¶¶ 68, 70), and the government does contend that
both of these contributions were “accepted . . . by Political Committee 5 in the District of
Columbia.” Dkt. 124 at 1; see also Dkt. 111 at 3. If so, that would be enough to support venue
in this District. The government will ultimately have to prove to the jury where Political
6
The government also argues that venue is proper where a political committee “report[s]” a
conduit contribution. Dkt. 92 at 3. But the Court need not consider at this juncture whether the
reporting of a contribution could in some circumstances support venue for a conduit contribution
charge, because the government in this case does not allege that the initial reporting of El-Saadi’s
and Hill’s conduit contributions occurred in the District of Columbia. The regulations require
the fundraising representative, here Political Committee 2, to “report all funds received” in the
first instance. Id. § 102.17(c)(8)(A). The government does not seem to contest that Political
Committee 2 reported the contributions outside the District of Columbia. After the funds are
dispersed, each participating committee, such as Political Committee 5, subsequently reports “its
share of net proceeds,” but does so as a “transfer-in from the fundraising representative,” not as a
contribution. Because transfers between political committees are not included in FECA’s
definition of “contribution,” id. § 102.17(c)(8)(B), the offense of permitting one’s name to be
used to effect a conduit contribution is complete before a participating committee in a joint
fundraising effort reports that it received the transfer of proceeds.
25
Committee 5 accepted those conduit contributions. At this stage, however, the Court cannot
conclude that venue is improper. See Fed. R. Crim. P. 12(b)(3)(A)(i). The Court will,
accordingly, deny El-Saadi’s motion to dismiss Count 18 and Hill’s motion to dismiss Count 19.
B. Motion for Separate Trial
El-Saadi next argues that his trial on the remaining conspiracy count should be severed
from that of his co-defendants. Dkt. 83-1 at 14–19. Rule 8(b) permits two or more defendants to
be charged together in a single indictment when they “are alleged to have participated in the
same act or transaction, or in the same series of acts or transactions, constituting an offense or
offenses.” Fed. R. Crim. P. 8(b). “There is a preference in the federal system for joint trials of
defendants who are indicted together.” Zafiro v. United States, 506 U.S. 534, 537 (1993); United
States v. Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986). Joint trials “play a vital role in the
criminal justice system” by “promot[ing] efficiency” and “avoiding the scandal and inequity of
inconsistent verdicts.” Zafiro, 506 U.S. at 537 (internal quotation marks and citations omitted).
Under Rule 14, however, “[i]f the joinder of . . . defendants in an indictment . . . appears to
prejudice a defendant or the government, the court may order separate trials of counts, sever the
defendants’ trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14. The
district court “enjoys wide discretion in determining whether to sever the trials of defendants
who have properly been joined,” but must be mindful of the strong presumption “in favor of
joinder.” United States v. Ford, 870 F.2d 729, 730 (D.C. Cir. 1989). “[A] district court should
grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise
a specific trial right of one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.” Zafiro, 506 U.S. at 539; see also United States v. Slatten,
865 F.3d 767, 810 (D.C. Cir. 2017). Even “[w]hen the risk of prejudice is heightened,” however,
26
“less drastic measures, such as limiting instructions, often will suffice to cure any risk of
prejudice.” Zafiro, 506 U.S. at 539. As El-Saadi concedes, “this Court has not often granted
motions to sever.” Dkt. 83-1 at 14.
El-Saadi contends that severance is necessary here because of the “great disparity in the
charges and evidence” against him as compared to the charges and evidence against his co-
defendants, which he suggests “could lead to jury confusion and an erroneous conviction.” Id. at
14. He argues that he will be prejudiced by the joinder of the Count 1 conspiracy, in which he is
not charged, with the Count 13 conspiracy, in which he is charged. And he further asserts that he
will be prejudiced by a joint trial with his co-Defendants in Count 13. Id. The Court is
unpersuaded.
As the government points out, “a trial of the [Count 13] conspiracy necessarily will
involve proof and witnesses that will overlap with the [Count 1] conspiracy.” Dkt. 92 at 5. In
the first conspiracy, Nader and Khawaja allegedly agreed to funnel foreign funds from Nader to
Khawaja for the purpose of influencing the 2016 presidential election, and in the second
conspiracy, Khawaja and the remaining defendants allegedly worked together to use Nader’s
money to make excessive and conduit contributions. Khawaja’s acts in furtherance of the Count
13 conspiracy are thus also overt acts in furtherance of the Count 1 conspiracy, and the facts
underlying the Count 1 conspiracy explain the origins and purpose of the Count 13 conspiracy.
And, in light of this overlap, several of the same witnesses are expected to testify with respect to
both conspiracies. Id. at 6–7. In these circumstances, the interests of judicial economy strongly
support trying the two conspiracies together.
In reply, El-Saadi contends that he will be prejudiced by the allegations of “foreign
influence” related to the first conspiracy, given that jurors are likely to react negatively to foreign
27
attempts to influence our elections and given that El-Saadi was unaware of the first conspiracy,
much less any connection between that conspiracy and Foreign Country A. Dkt. 93 at 13–14.
The Court agrees with the government that limiting instructions, if necessary, can address any
risk of prejudice related to the first conspiracy’s foreign ties. As the government points out, “the
defense can highlight, and the government will acknowledge, that there is no evidence El-Saadi
knew about the agreement between Khawaja and Nader.” Dkt. 92 at 7. The Court will direct the
jury, in considering Count 13, to decide whether a separate conspiracy existed and whether El-
Saadi agreed to join and took overt acts in furtherance of that separate conspiracy. Severance of
the trials for the two conspiracies is not warranted.
El-Saadi next argues that his trial should be severed from his co-defendants in the Count
13 conspiracy because of his relatively limited involvement. Dkt. 83-1 at 15–19. El-Saadi is
charged in only two of the indictment’s 52 counts. El-Saadi’s participation in the conspiracy was
apparently limited to making one conduit contribution at a fundraiser in 2016, but the overall
conspiracy continued into 2018 and involved numerous other conduit contributions by his co-
Defendants. And unlike several of the other defendants, El-Saadi is not accused of trying to
cover up his crimes by lying to federal investigators. El-Saadi argues that these various
disparities would render a joint trial fundamentally unfair, because “it would be unrealistic to
expect jurors to be able to separate and compartmentalize the charges and evidence against Mr.
El-Saadi from that of his co-defendants.” Id. at 17.
As El-Saadi contends, the facts of this case bear at least some resemblance to those of
U.S. v. Mardian, 546 F.2d 973 (D.C. Cir. 1976). In that case, the D.C. Circuit reversed the
conviction of Robert C. Mardian for his role in the coverup of the break-in at the Watergate
Office Building on the ground that the trial court had abused its discretion in denying a request
28
for a severance. The Court of Appeals based its decision, in part, on the small role that Mardian
had played within the larger conspiracy. The court of appeals warned that, “where there is great
disparity in the weight of the evidence, strongly establishing the guilt of some defendants, the
danger persists that guilt will improperly ‘rub off’ on the others.” Id. at 977 (citation omitted).
The trial court should thus “use every safeguard to individualize each defendant in his relation to
the mass” to avoid the “dangers of transference of guilt.” Id. (quotation marks and citations
omitted). Mardian was charged in only the conspiracy count of a multi-count indictment, and he
was involved in only five of the forty-five alleged overt acts in furtherance of that conspiracy.
Further, Mardian, like El-Saadi, had been involved in only the early stages of a long-running
conspiracy. Id. at 978. And the volume of evidence implicating Mardian, like the volume of
evidence relevant to El-Saadi, was less than the evidence pertaining to some of the other
defendants. Id.But despite these similarities, El-Saadi’s reliance on Mardian is misplaced. The D.C.
Circuit in Mardian held that the trial court had not abused its discretion in denying a pretrial
motion to sever, given the general rule favoring joinder. Id. at 979. Once trial began, however,
it became clear that only a small portion of the evidence pertained to Mardian, and then
Mardian’s chosen counsel “became ill and was forced to enter a hospital for surgery,” such that
he would be unavailable for “at least six weeks.” Id. At that point, Mardian renewed his motion
for severance, which the government did not oppose. Id. The D.C. Circuit thus required a new,
separate trial based on “Mardian’s interest in being represented by counsel of his own choice,
combined with the disproportion of the evidence to his potential prejudice,” and in light of “the
prosecution indicat[ing] that in its view a separate trial would cause no undue disruption.” Id. at
981. Even granting that the government is likely to offer relatively less evidence against El-
29
Saadi than against his co-defendants, the other dispositive circumstances from Mardian,
including the unavailability of counsel and the acquiescence of the government, are not present
here.
In any event, El-Saadi overstates the disparity in allegations and evidence between him
and his co-defendants, which is less substantial than in Mardian. To be sure, the number of
allegations against Khawaja, as the alleged hub of the second conspiracy, is far greater than
against anyone else. But El-Saadi’s alleged participation in the second conspiracy is similar to
the alleged roles of several other defendants. Like those other defendants, El-Saadi is accused of
taking money from Khawaja and then contributing that money to a political committee in
connection with the 2016 election. The proof of these conduit contributions will likely be of
similar nature and quality, including copies of reports detailing the transactions. El-Saadi
allegedly made only one such contribution, while some of the others allegedly made more than
one. But that disparity alone is insufficient to show prejudice to any of El-Saadi’s “specific trial
right[s],” nor will a joint trial “prevent the jury from making a reliable judgment about guilt or
innocence” in El-Saadi’s case. Zafiro, 506 U.S. at 539. The Court will, of course, be attentive to
its “continuing duty at all stages of the trial to grant a severance if prejudice does appear,”
Mardian, 546 F.2d at 979 (quotation marks and citations omitted), but at this stage, the Court is
confident that instructions to the jury on its duty to consider the proof against each defendant
individually will be sufficient to safeguard El-Saadi’s rights.
30
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that El-Saadi’s motion to dismiss and
to sever his trial, Dkt. 83, is DENIED. It is further ORDERED that Hill’s motion to dismiss,
Dkt. 106, is DENIED.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: July 20, 2021
31