United States v. Michael R. Goland

977 F.2d 1359 UNITED STATES of America, Plaintiff-Appellee, v. Michael R. GOLAND, Defendant-Appellant. No. 90-50423. United States Court of Appeals, Ninth Circuit. Oct. 27, 1992. Prior report: 959 F.2d 1449 . Before FARRIS, PREGERSON and THOMPSON, Circuit Judges. ORDER 1 A majority of the panel, as constituted above, voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. 2 The full court was advised of the suggestion for en banc rehearing. A call for en banc rehearing was made; however, a majority of the active judges of the court did not vote for en banc rehearing. See Fed.R.App.P. 35. 3 The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED. 4 PREGERSON, Circuit Judge, with whom Circuit Judges TANG, KOZINSKI, and KLEINFELD join, dissenting from denial of rehearing en banc: 5 The majority views this case as just another criminal case. They view Goland as someone who violated the election laws and got caught. But by failing to take this case en banc, we allow a person to be imprisoned for exercising individual rights that are at the core of the First Amendment. This case raises significant free speech issues…

dissenting from denial of rehearing en banc:

The majority views this case as just another criminal case. They view Goland as someone who violated the election laws and got caught. But by failing to take this ease en banc, we allow a person to be imprisoned for exercising individual rights that are at the core of the First Amendment. This case raises significant free speech issues and deserves the consideration afforded by our en banc process.

I.

As I explained in my dissent to the majority’s opinion, I do not believe that the statute defines Goland’s conduct as a criminal offense. Under 2 U.S.C. § 441a(a)(7)(B)(i), “contribution” includes an expenditure “made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents.” An “independent expenditure,” on the other hand, is made without such cooperation, consultation, or concert. See 2 U.S.C. § 431 (17). Goland did not cooperate, consult, or work in concert with Vallen on the production of the television commercial in question. Vallen made it clear that he would not accept support from a Zionist source. Vallen did not even know…

ORDER

A majority of the panel, as constituted above, voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court was advised of the suggestion for en bane rehearing. A call for en banc rehearing was made; however, a majority of the active judges of the court did not vote for en banc rehearing. See Fed. R.App.P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.