From Abbe Lowell's closing argument:
You will see Rachel Mellon's December 2007 and January 2008 checks were not deposited by the Youngs in the 8 Middle District of North Carolina, and the Judge will give you an instruction on how to apply that issue. You will see that Rachel Mellon's December '07 and January '08 checks were not deposited by the Youngs until after the campaign ended, and you will see that Fred Baron's funds were not paid in the Middle District of North Carolina.
The Government even told the jury in its rebuttal closing that payments after January 30, 2008 aren't charged in the Indictment:
The point is not that those payments after January 30th are charged, because they are not. The point isn't that they can be a basis of conviction, because they can't.
From the Government's initial closing argument, it offered this weak argument on venue for Mellon's 2008 contributions: Fedex routed it through the Middle District before delivering it elsewhere and they were part of a plan developed in 2007:
For Mrs. Mellon, she wrote all her checks in 2007 except the one for $200,000. So in 2007 she gave $525,000, and in 2008 she gave 200,000.
Mrs. Mellon's money in 2007, it was all received and deposited here in the Middle District. And as to the checks, which were deposited in 2008, they were received initially here in the Middle District by Federal Express, and they were part of the plan which had been developed in 2007.
Ms. Mellon's December 2007 check for $175,000 was not deposited until February 2008. Her January 2008 check for $200,000 was not deposited until April 2008. From the hearing on the unsuccessful defense motion for judgment of acquittal:
[A] December 12th, 2007, check, which was received by Mr. Huffman in Monroe, which is in the Western District of North Carolina. It was sent to Ms. Young in Chapel Hill, where nothing happened with it for some time. She then came and picked up the check and moved it back to California where, if you remember, she attempted to deposit it there. It could not happen there, and so it was sent back to Mr. Huffman in Monroe, which is in the Western District of North Carolina, where it was deposited in Charlotte, also a place in the Western District of North Carolina, and that was deposited on February 20th, 2008.
Your Honor, Government Exhibit 166 is that check and the back and the deposit slip slowing those dates, and February the 20th, 2008, is a month after the campaign had ended.
The January 23rd, 2008, check was sent to
Mr. Huffman in Monroe, in the Western District of North Carolina, and he sent it to Chapel Hill to Ms. Young again where it sat for some time. Then she picked it up, and she brought it to California, and then she sent it back to Mr. Huffman, who deposited it in Charlotte at the same bank in April -- on April 17, 2008. That's Government Exhibit 168. And again, April 17, 2008, is after the campaign had ended.
In the final jury instructions as to Count 3, the Court told the jury :
First, the government has to prove that Mr. Edwards accepted or received, or willfully caused another to accept or receive on his behalf, contributions that totaled $25,000 or more during calendar year 2008....
...the only thing that has to happen in 2008 is the acceptance or receipt of a contribution, and of course it must have been accepted or received while Mr. Edwards was a candidate for the presidency, not afterwards.
...So, on Count 3, before you can find Mr. Edwards guilty, the government must prove beyond a reasonable doubt that, while he was a candidate for president, Mr. Edwards knowingly and willfully accepted or received, or knowingly and
willfully caused another to accept or receive on his behalf, contributions from Ms. Mellon that totaled $25,000 or more during calendar year 2008.
On venue for Count 3, the judge instructed the jury, that as with count 2:
[T]he government must prove by the preponderance of the evidence that an act in furtherance of the crime occurred in the Middle District of North Carolina. The crime is the acceptance or receipt of excessive campaign contributions....
The government need not necessarily prove that the crime itself was committed in this district or that Mr. Edwards was present here when the crime was committed. It is sufficient to satisfy this element if Mr. Edwards’ act causing the crime or causing any other act in furtherance of the crime occurred within this district. If you find that the government has not established this by the preponderance of the evidence, then you should answer this sub-issue “No,” which will result in acquittal
And specifically as to Count 3:
[T] he government must prove by the preponderance of the evidence that an act in furtherance of the crime occurred in the Middle District of North Carolina.....
....you will need to decide if the government has proved by a preponderance of the evidence that an act in furtherance of the crime in Count 3 occurred in the Middle District of North Carolina. If so, you will answer this issue Yes, and if not, you will answer the issue No, which will result in acquittal.
So the jury agreed that that Mellon's 2008 deposits were not received while Edwards was running for President and/or that venue was not established for those checks in the Middle District of North Carolina. Thus, the monies she provided that year did not exceed $2,300.00
Team Edwards repeatedly made this argument in pre-trial motions. They set forth case law that says a campaign contribution is not deemed accepted until it is deposited. (Until then the donor could change his mind.) There was no case law to the contrary.
Even though the judge refused to expressly say that in her instruction (which in my view was clear error), she said enough for the jury to accept Team Edwards arguments on the point, while the Government had no valid retort. This count should never have survived to go the jury in the first place.
