ATLANTA (CN) — Former Republican Congressman David Rivera took his fight against a six-figure campaign finance penalty to the 11th Circuit on Tuesday, asking the panel to let a jury decide whether he made campaign contributions in another person’s name to undermine a Democratic rival in a Florida election.
Rivera’s attorney told a three-judge panel of the Atlanta-based appellate court that a Miami federal judge ignored conflicting evidence in siding with the Federal Election Commission and ordering Rivera to pay a $456,000 fine for violating the Federal Election Campaign Act.
Arguing on behalf of Rivera, attorney Thomas Hunker of Hunker Paxton Appeals & Trials said the FEC failed to satisfy some of the law’s requirements in pursuing what was the largest civil penalty ever imposed by the agency on a non-corporate individual.
Rivera was accused of secretly directing more than $75,000 to Democratic primary candidate Justin Sternad as part of an effort to weaken the campaign of Rivera’s Democratic opponent, Joe Garcia. The contributions were made during Rivera’s 2012 campaign for re-election to Congress in Florida’s 26th Congressional District.
Garcia won the primary and went on to defeat Rivera.
According to the FEC, Rivera directed political consultant Ana Sol Alliegro to have Sternad falsely report the contributions as loans from Sternad’s personal fund to his campaign. Attorneys for Rivera have argued that Sternad’s false report to the FEC cannot be imputed to Rivera.
Alliegro testified to the grand jury that she deposited money from Rivera into Sternad’s campaign bank account to pay the $10,440 qualifying fee for his campaign. Rivera also paid vendors to create and mail flyers for Sternad, Alliegro testified.
Alliegro was sentenced in 2014 to six months in prison after pleading guilty to conspiracy to make a false statement and to violate the Federal Election Campaign Act, making a false statement and illegal campaign contributions.
Hunker told the panel Tuesday that there is “conflicting” evidence as to whether his client engaged in a scheme to unlawfully fund the Sternad campaign.
Hunker said that Alliegro recanted grand jury testimony and statements made at her plea colloquy.
But U.S. District Judge Marcia Cooke ruled that a declaration made by Alliegro was “ambiguous” and “insufficient” to repudiate her “very damning” testimony.
The two Donald Trump-appointed judges on the panel questioned whether the existence of a potential evidentiary conflict at the summary judgment stage was enough to warrant returning the case to Miami federal court.
U.S. Circuit Judge Robert Luck pointed out Rivera specifically denied making a contribution in a false name and could have presented evidence to a jury in support of his denial.
Luck read a lengthy excerpt from a declaration in which the ex-congressman said he never served as a source of money or in-kind contributions to the Sternad campaign and never instructed anyone to falsely report the source of a contribution.
“What do we do with this?” Luck asked. “Isn’t that a dispute of fact?”
FEC attorney Shaina Ward told the panel there is “extensive and overwhelming” evidence showing that “what happened was an elaborate effort to conceal that name [by] using cash, working with vendors, directing others how to report it.”
Ward argued Rivera’s declaration was not enough to dispute the “uncontradicted” evidence presented by the FEC. She noted Rivera did not challenge testimony from six other witnesses.
“If he disputes it and says he did not do that and a hundred people swear on a stack of Bibles that he did, isn’t that a dispute of fact?” Luck asked.
U.S. Circuit Judge Barbara Lagoa appeared to agree with Luck, telling Ward, “This is like a classic he-said she-said and normally those go to trial.”
Hunker told the panel that the FEC did not apply the law correctly to his client and that Rivera’s actions did not violate the law.
“The way they’re applying the statute implies a contribution is not complete until it’s reported to the FEC and that’s simply not how these statutes work,” Hunker said. “This was not a money contribution to the campaign. It was an in-kind expense.”
Hunker also argued the FEC illegally contacted Rivera directly about the case instead of reaching out to his attorney.
The panel, rounded out by Bill Clinton appointee U.S. Circuit Judge Charles Wilson, did not indicate when it would rule.
Rivera also faces other legal troubles. He was arrested in December 2022 on an eight-count criminal indictment charging him with offenses including conspiracy to commit money laundering.
According to the indictment, Rivera participated in a conspiracy in the early days of the Trump administration to lobby U.S. politicians on behalf of Venezuela to prevent additional U.S. sanctions against President Nicolas Maduro and resolve a dispute with a U.S. oil company.
The ex-congressman did not register as a foreign agent before acting, the government claims.
Additional charges brought against Rivera in December include tax evasion and making a false tax return.
Follow @KaylaGoggin_CNS
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