should be considered for federal prosecution under one or more of the
prosecutive theories presented above.
2. FECA’s Criminal Penalty Provision
As noted above, FECA has an internal criminal penalty
provision, Section 30109(d). In order for a FECA violation to be a
federal crime, Section 30109(d) generally requires that two elements
be satisfied: the violation must have been committed “knowingly and
willfully,” and, with certain exceptions, the amount involved in the
violation must aggregate $2,000 or more in a calendar year.
Moreover, a single pattern of illegal conduct can often involve several
FECA offenses, which may have different monetary thresholds for
criminal penalties. An example would be corporate contributions in
violation of Section 30118 that are laundered through conduits in
violation of Section 30122. Prosecutions under the Act thus present
three factual issues: intent, aggregate value, and applicable penalties.
These topics are discussed below.
(a) Intent
Most FECA violations must have been done “knowingly and
willfully” to provide a basis for criminal liability. § 30109(d). The
willfulness required is defined by the Bryan standard, articulated by the
Supreme Court in Bryan v. United States, 524 U.S. 184 (1998). In that
case, the Supreme Court considered the willfulness requirement for
trading in or transporting firearms in interstate commerce without a
license. Finding that the statute at issue was not highly technical such
that it would “ensnar[e] individuals engaged in apparently innocent
conduct,” as the tax laws might, the Court found willfulness, as used in
the statute, did not require the defendant to have known of a specific
statutory duty. Bryan, 524 U.S. at 193–95. Instead, the defendant need
only know, generally, that his conduct was unlawful. Id. at 195–96.
152
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