PHILADELPHIA – A federal appellate court has vacated a pair of criminal counts for Kenneth Smukler, an attorney and ex-aide to Democratic Rep. Bob Brady who was convicted more than two years ago of violating multiple federal election laws.
A three-judge panel of the U.S. Court of Appeals for the Third Circuit issued a 39-page opinion on Jan. 26, throwing out two counts of Smukler’s criminal conviction, related to falsification and concealment of information from the Federal Election Commission on election campaigns he was involved with for both Brady and Rep. Marjorie Margolies in 2012 and 2014, respectively.
Smukler stood accused of violating the Federal Election Campaign Act of 1971 by paying one of Brady’s campaign opponents, former Philadelphia Municipal Court Judge Jimmie Moore, $90,000 to leave the 2012 Democratic primary race, illegally making six-figure donations to Margolies’s congressional campaign in 2014 and obstructing the resulting federal investigation.
Both Brady and Margolies were never charged with a crime in the incidents, but Moore and his former campaign manager Carolyn Cavaness did plead guilty. Smukler was convicted in December 2018 and sentenced to 18 months in prison.
On appeal, Smukler cited United States of America v. Curran in contesting that the trial court judge improperly instructed the jury as to its consideration of whether or not he “willfully” violated the federal laws he was accused of breaking. According to Smukler, the prosecution should have been tasked with proving that he knew the law and violated it regardless.
In authoring the Court’s unanimous opinion, Third Circuit Judge Paul B. Matey held that Smukler “reaches for the rarest meaning” of the word “willfully” in presenting his appeal and in interpreting the Federal Election Campaign Act.
“Smukler does not specify what about FECA he finds to be ‘complex’ or ‘highly technical.’ He protests its length in a footnote. True enough, as FECA packs in rules for contributions (and a host of other conduct) that candidates, campaigns, and contributors must follow when engaging in election politicking. But those rules are reasonably straightforward and written in common terms,” Matey stated.
“One provision sets forth the contribution limits applicable to every congressional candidate in each election cycle. Another makes it unlawful for individuals to contribute in the names of others. A third requires honestly reporting contributions received to the FEC. Civil and criminal penalties can result from a ‘knowing and willful’ violation of FECA.”
Matey added that “compared with anti-structuring or tax laws…individual campaign contribution laws are more intuitive and less complex, all of which speaks to an ordinary, not extraordinary, set of prohibitions.”
However, the appeals court also let the other seven counts Smukler was convicted on remain intact. These counts included defrauding the federal government, making campaign contributions in the name of another individual and taking actions leading to the creation of false campaign expense reports.
U.S. Court of Appeals for the Third Circuit case 19-2151
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com