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When plaintiffs attorney Pierce O’Donnell contributed $26,000 to a presidential candidate in 2003 in the names of 13 other people, he violated the Federal Election Campaign Act even though the law does not specifically address “conduit” or “indirect” contributions, federal prosecutors argued in a brief filed on Monday with a federal appeals court. In their brief, federal prosecutors contended before the 9th U.S. Circuit Court of Appeals that Congress, in drafting Section 441f of the Federal Election Campaign Act, intended to address O’Donnell’s actions. “The question is not whether Congress could have used different words, but whether the wording Congress actually chose embraces the conduct at issue; here, it does,” they wrote. O’Donnell, of O’Donnell & Associates in Los Angeles, was indicted last year on charges of reimbursing employees of his law firm and other individuals who contributed $2,000 each to the campaign of a presidential candidate, believed to be former U.S. Sen. John Edwards, D-N.C. Prosecutors brought three counts, alleging that O’Donnell had conspired to contribute in the names of others; contributed more than $10,000 in the names of others; and consequently caused the candidate’s committee to make false statements to the Federal Election Commission. The first two counts were based on Section 441f, which 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.” On June 8, U.S. District Court Judge S. James Otero of the Central District of California dismissed the conspiracy and illegal contribution counts, ruling that Section 441f applied only to contributions made under false names. Otero reasoned, in part, that the section’s language does not include the words “conduit” or “indirect” in defining contribution violations, although those words appear in the FECA under different statutes. Later, prosecutors asked Otero to dismiss with prejudice the count of causing the campaign committee to file a false report. They cited concern about a potential duplicate trial in the event that the 9th Circuit reverses dismissal of the first two counts. Assistant U.S. Attorney Erik Silber, who drafted the 9th Circuit brief, declined to comment. But in their brief, prosecutors argued that if Congress had originally intended to omit “conduit” or “indirect” contributions from Section 441f, it would have done so. “There is no functional difference between contributing using a false name and contributing using the name of a straw donor,” prosecutors argued. O’Donnell’s attorney, George J. Terwilliger III, a partner at White & Case in Washington, did not return a call for comment. O’Donnell is the lead plaintiff’s attorney in a case brought on behalf of hundreds of thousands of homeowners alleging that the U.S. Army Corps of Engineers failed to maintain levees along a major navigation channel, contributing to the flooding from Hurricane Katrina. A federal judge in New Orleans took the case under submission after a trial concluded earlier this summer. The government has estimated that the case could cost it $100 billion damages.

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