Tuesday, February 09, 2021

Heightened standard of proof for "willfully" element does not apply to every charge brought under the Federal Election Commission Act (FECA)

 Defendant Smukler was convicted on multiple charges of fraud and false statements under the Federal Election Commission Act (FECA). On appeal, United States v. Smukler, __ F.3d __, 2021 WL 245262 (Jan. 26, 2021), Smukler argued that the district court erred in not applying a heightened "willfully" standard to his charges under FECA. The Third Circuit noted that "willfully" has at least three levels of interpretation: (1) defendant acted intentionally, knowingly, or voluntarily, as distinguished from accidentally; (2) defendant acted not merely voluntarily, but with a bad purpose, that is, with knowledge that his conduct was, in some general sense, unlawful; and (3) defendant actually knew of the specific law prohibiting the conduct. The middle level of willfully - defendant acted with bad purpose - operates in most criminal cases. In some rare instances, however, involving a highly technical statute or complex statute, the highest level of willfully - defendant actually knew of specific law prohibiting the conduct - is required for conviction.

Relying on United States v. Curran, 20 F.3d 560 (3d Cir. 1994), the Court agreed that the heightened standard of willfully applied to prosecutions under the aiding and abetting (18 U.S.C. § 2) and false statements (18 U.S.C. § 1001) statutes in the federal election law context given that election offenses are rarely prosecuted in tandem under these two statutes. But the Court found no similar level of rarity or complexity in substantive charges brought under FECA. It found those rules to be reasonably straightforward, written in common terms, intuitive, and less complex than the anti-structuring or tax law cases where the heightened standard for willfully had previously been applied. Accordingly, and consistent with precedent, the Third Circuit applied the ordinary reading of willfully to Smukler's substantive offenses under FECA.  

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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