United States of America v. Jesse R. Benton

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 12, 2024 Decided April 19, 2024
No. 23-3028
UNITED S TATES OF A MERICA,
APPELLEE
v.
J ESSE R. B ENTON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cr-00569-1)
Denis N. Harper, appointed by the court, argued the cause
for appellant. With him on the briefs were Matthew D. McGill
and M. Christian Talley, appointed by the court.
W. Connor Winn, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee. Scott A.
Meisler, Attorney, and John P. Taddei, Trial Attorney, entered
appearances.
Before: HENDERSON , P AN and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.

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KAREN LEC RAFT HENDERSON, Circuit Judge: In 2016,
Jesse Benton received funds from foreign national Roman
Vasilenko and contributed those funds, under his name but on
Vasilenko’s behalf, to a fundraiser supporting then-Presidential
candidate Donald Trump. Vasilenko attended the fundraiser
and had his photograph taken with Trump. A jury subsequently
convicted Benton of six felonies stemming from the unlawful
contribution and related campaign finance filings. Benton
appeals on several grounds, including his challenges to the
government’s decision to prosecute campaign finance crimes
under the Sarbanes-Oxley Act, 18 U.S.C. § 1519, the
admissibility of an earlier pardoned conviction under Federal
Rule of Evidence 404(b) and its use at sentencing, the
sufficiency of the evidence and the jury charge. As detailed
infra, we affirm the district court.
I. B ACKGROUND
A. Facts
Roman Vasilenko is a Russian businessman involved in
multilevel marketing. He was a candidate for a seat in the State
Duma—Russia’s parliament—during the fall of 2016. He met
Roy Douglas “Doug” Wead through their multilevel-marketing
work. Wead, an American, previously served as an advisor to
President George H. W. Bush and was involved in several
federal political campaigns. Through his translator, Vasilenko
informed Wead of his interest in visiting the United States.
Vasilenko paid Wead $100,000 to attend Wead’s Charity
Awards dinner and receive an award. Wead provided
Vasilenko with a list of potential celebrity attendees and asked
Vasilenko which celebrities he wanted to meet. Vasilenko
responded with his choices: Oprah Winfrey, Steven Seagal,
Vladislav Tretiak and former President Jimmy Carter. But
Wead struggled to find a celebrity planning to attend the

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awards dinner.1 Wead proposed an alternative: “[W]hat about
Donald Trump?” J.A. 187. Vasilenko agreed and Wead then
contacted Jesse Benton.
Jesse Benton is a political operative who led Ron Paul’s
2012 presidential primary campaign. He owns a political
consulting firm and had significant involvement in the Trump-
supporting Great America Political Action Committee (PAC).
In November 2015, a federal grand jury indicted Benton for
concealing payments from a political committee to a state
senator. In the Southern District of Iowa, a jury convicted him
of, inter alia, “causing false records” under the Sarbanes-Oxley
Act, 18 U.S.C. § 1519, and “causing false campaign
contribution reports” under Federal Election Campaign Act
(FECA), 52 U.S.C. §§ 30104(a)(1) and (b)(5)(A),
30109(d)(1)(A)(i). J.A. 338–39; see United States v. Benton,
890 F.3d 697 (8th Cir. 2018). Benton formally stepped down
from his role at the Great America PAC in the wake of his
conviction but continued to participate in its fundraising
efforts. President Trump later pardoned Benton. Benton and
Wead knew one another from their work on federal political
campaigns.
Benton and Wead spoke shortly after Vasilenko expressed
interest in meeting Trump. Benton then communicated with his
contacts at the Republican National Committee (RNC). In an
email to RNC chief of staff Katie Walsh, Benton claimed he
had a friend spending “most of his time in the Caribbean” who
“caught the Trump bug” and wanted to “attend a funder and get
a photo.” J.A. 321–22. The RNC provided information about
several fundraisers, including a Philadelphia fundraiser
scheduled for September 22, 2016. Vasilenko indicated he was
“happy and ready to wire his donation” for the Philadelphia
1 Wead refunded $20,000 to Vasilenko and kept the remaining
$80,000 after the awards dinner plans fell through.

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fundraiser. J.A. 319. Wead responded to Vasilenko that he and
Benton “want to do this correctly.” Id. Benton then notified the
RNC that “[w]e’d like to do the Philly event on 9/22.”2 J.A.
320.
The fundraising committee Trump Victory hosted the
Philadelphia fundraiser. Promotional materials noted that
contributions were to be allocated to Donald J. Trump for
President, Inc., the RNC and various state Republican parties.
The materials also explained that any contributions were
subject to federal law and “will be used in connection with
federal elections.” J.A. 325. The event involved two functions:
a roundtable discussion and a reception plus photo opportunity.
Donors could first attend the roundtable with Trump for a
minimum donation of $25,000. Roundtable attendees were
automatically invited to the later reception but a donor had to
pay $5,400 to attend the reception only.
After some discussion, Benton expressed interest in the
pricier roundtable tickets. Benton and Wead sent Vasilenko an
apparently false invoice for “consulting work” related to
Wead’s Charity Awards organization and Vasilenko wired
Benton $100,000. Benton ordered two roundtable tickets for
“Doug Wead and a guest,” at $25,000 each, the day before the
Philadelphia fundraiser. J.A. 333. As with the RNC, Benton
never disclosed Vasilenko’s foreign national status to Trump
Victory. And he did not pay for the tickets before the
fundraiser. Vasilenko and Wead attended the roundtable and
the reception. Photographs show Vasilenko with and near
Trump.
2 Benton never disclosed Vasilenko’s foreign national status to
the RNC and on October 24—after the fundraiser—he disclosed
Vasilenko’s first name only.

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After the event, Vasilenko’s translator repeatedly
contacted Wead about obtaining the photos. When Vasilenko
finally received them, he posted one on social media with the
caption “Two Presidents.” Vasilenko gained significant
attention as a result, including speaking on Russian TV about
President-elect Trump and his attitudes toward Russia.
Meanwhile, Benton still had not paid for the fundraiser tickets.
He finally paid in late October—only $25,000. His contribution
form identified himself as the contributor. Benton explained
that he “bought the tickets” and gave “them to Doug and
Roman, so the money comes from me.” J.A. 220. Trump
Victory contacted Benton about the missing $25,000—he had
originally pledged to pay $50,000—but he never paid it.
According to the indictment, Benton kept the remaining
$75,000 from Vasilenko’s $100,000 payment. Benton’s false
statements regarding the $25,000 contribution resulted in the
fundraising committees’ filing of false campaign-finance
disclosures.
B. Statutory Background
In September 2021, the government obtained a six-count
indictment against Benton,3 charging him with six felonies:
conspiracy in violation of 18 U.S.C. § 371 (Count One);
soliciting a contribution from a foreign national in violation of
FECA, 52 U.S.C. § 30121 (Count Two); serving as a conduit
for a FECA “contribution” in violation of 52 U.S.C. § 30122
(Count Three); and “causing false records” in violation of 18
U.S.C. § 1519 of the Sarbanes-Oxley Act (Counts Four, Five
and Six). J.A. 17–35.
FECA is an intricate statutory scheme regulating political
contributions and expenditures and applies to all phases and
participants in the electoral process. See 52 U.S.C. §§ 30101–
3 The government also indicted Wead but he died before trial.

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30146; Buckley v. Valeo, 424 U.S. 1, 12–13 (1976). A
“contribution” under FECA includes “any gift, subscription,
loan, advance, or deposit of money or anything of value made
by any person for the purpose of influencing any election for
Federal office.” 52 U.S.C. § 30101(8)(A)(i). As relevant here,
FECA prohibits (1) a foreign national from making a
contribution or donation and (2) any person from soliciting,
accepting or receiving such a contribution from a foreign
national. Id. § 30121(a). FECA also forbids making “a
contribution in the name of another person.” Id. § 30122.
Violations of FECA can trigger civil or criminal penalties. Id.
§ 30109. Anyone who “knowingly and willfully” commits a
violation of the Act which involves “making, receiving, or
reporting of any contribution, donation, or expenditure”
aggregating $25,000 or more during a calendar year is subject
to up to five years’ imprisonment and a fine. Id.
§ 30109(d)(1)(A)(i).
The indictment also charged Benton with three counts of
“causing false records” under 18 U.S.C. § 1519, part of
Sarbanes-Oxley. J.A. 32–34. Enacted in 2002 following the
exposure of Enron’s massive accounting fraud, Yates v. United
States, 574 U.S. 528, 535 (2015) (plurality op.), Sarbanes-
Oxley prohibits causing “a false entry in any record, document,
or tangible object with the intent to impede, obstruct, or
influence” the administration “of any matter within the
jurisdiction of any department or agency of the United States.”
18 U.S.C. § 1519. A violator faces potential fines and up to
twenty years’ imprisonment. Id. Although the Congress
enacted § 1519 in the context of Enron’s financial
record/document fraud, the Supreme Court has noted that it
applies in a “multiplicity of contexts.” Yates, 574 U.S. at 542
n.5.

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C. District Court Proceedings
Benton moved to dismiss the indictment, arguing (1) the
government did not allege that Vasilenko intended to influence
the election and (2) § 1519 of Sarbanes-Oxley does not apply
to election crimes that can be prosecuted under FECA. The
district court explained that “the indictment need not define
down the statutory term[ ] of ‘contribution’” in detail, J.A. 93,
and held § 1519 applicable to a false campaign finance filing.
It denied Benton’s motion to dismiss but, importantly, “without
prejudice so that the defense may raise arguments about these
issues in its case in chief.” J.A. 94.
Also pre-trial, the government moved to admit Benton’s
past conviction as “bad act” evidence under Rule 404(b) and as
potential impeachment under Rule 609. FED. R. EVID. 404(b),
609. Benton opposed. The district court held the conviction
admissible under Rule 404(b) to demonstrate willfulness and
“probably” as evidence of a modus operandi. J.A. 110.
Concluding that Benton’s pardon was not based on innocence,
the district court also held that the conviction could be used for
impeachment under Rule 609.
The district court held a three-day jury trial. The
government admitted Benton’s pardoned conviction under
Rule 404(b). Benton did not testify, mooting the Rule 609
ruling. The parties jointly proposed jury instructions. After
deliberating for two days, the jury found Benton guilty on all
counts. Benton moved for judgment of acquittal, arguing that
the court wrongly admitted the pardoned conviction and the
government failed to show Vasilenko’s intent to influence a
federal election. The court denied the motion and entered
judgment.
A probation officer prepared a presentencing report (PSR)
that included Benton’s pardoned conviction in the criminal

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history score calculation. Benton initially objected but, at
sentencing, his counsel agreed to the criminal history
calculation. The court imposed a within-guidelines sentence of
eighteen months’ incarceration and twenty-four months’
supervised release. Benton now appeals.
II. ANALYSIS
Benton’s challenges require us to apply different standards
of review. He first challenges whether the government can
prosecute false election filings under Sarbanes-Oxley, not
FECA. See infra Section II.A. We review this legal question de
novo. See United States v. Fischer, 64 F.4th 329, 335 (D.C. Cir.
2023). We review Benton’s challenge to the admissibility of
his pardoned conviction for plain error as well as the pardon’s
basis for clear error. See infra Section II.B.; Greer v. United
States, 593 U.S. 503, 507 (2021); Awad v. Obama, 608 F.3d 1,
6–7 (D.C. Cir. 2010). We decline to consider the pardoned
conviction’s use at sentencing because Benton invited any error
therein. See United States v. Moore, 703 F.3d 562, 571–72
(D.C. Cir. 2012). Benton similarly invited error, if any, in the
jury charge. See infra Section II.C.; United States v. Laureys,
653 F.3d 27, 32 (D.C. Cir. 2011). Finally, we reject his attempt
to repackage a claim of jury instruction error as a sufficiency-
of-the-evidence challenge. See infra Subsection II.C.3; United
States v. Reynoso, 38 F.4th 1083, 1090–91 (D.C. Cir. 2022).
A. FECA and Sarbanes-Oxley
Benton claims that the general false records provision of
Sarbanes-Oxley, 18 U.S.C. § 1519, cannot be used to prosecute
the submission of false reports to the Federal Election
Commission (FEC). Instead, according to Benton, the general-
specific canon of statutory construction requires the
government to prosecute that conduct under FECA’s criminal
provisions only. See 52 U.S.C. §§ 30104(a)(1) and (b)(5)(A),

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30109(d)(1)(A)(i). Because we find no congressional intent to
foreclose § 1519’s application to false FEC reports, we
conclude that the government had discretion to prosecute
Benton’s acts under either FECA or § 1519 of Sarbanes-
Oxley.4
The Supreme Court has “long recognized that when an act
violates more than one criminal statute, the Government may
prosecute under either.” United States v. Batchelder, 442 U.S.
114, 123–24 (1979). “Whether to prosecute and what charge to
file or bring before a grand jury are decisions that generally rest
in the prosecutor’s discretion.” Id. at 124. But the Court has
also recognized a general-specific canon of statutory
construction: “a more specific statute will be given precedence
over a more general one, regardless of their temporal
sequence.” Busic v. United States, 446 U.S. 398, 406 (1980)
(requiring the application of a specific sentencing enhancement
instead of a general enhancement); see also Simpson v. United
States, 435 U.S. 6, 15–16 (1978) (rejecting the application of
two sentencing enhancements—one specific and one general—
to the same criminal activity). According to the High Court, the
“general/specific canon” avoids “the superfluity of a specific
provision that is swallowed by the general one, ‘violat[ing] the
cardinal rule that, if possible, effect shall be given to every
clause and part of a statute.’” RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 566 U.S. 639, 645 (2012) (quoting D.
Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208 (1932)).
Our court has also applied the general-specific canon. See
4 Indeed, the government may charge false election filings
under both statutes. See Oral Arg. Tr. 28:15–29:7; cf. United States
v. Comput. Scis. Corp., 689 F.2d 1181, 1187 (4th Cir. 1982)
(recognizing the government’s ability to prosecute under both a
“wire fraud or mail fraud statute and the false claims statute”),
overruled on other grounds, Busby v. Crown Supply, Inc., 896 F.2d
833 (4th Cir. 1990).

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Galliano v. U.S. Postal Serv., 836 F.2d 1362, 1367–70 (D.C.
Cir. 1988) (the FEC, not the U.S. Postal Service, has exclusive
jurisdiction to regulate solicitations of political contributions).
The question before us, then, is the interaction of these two
doctrines: Does the general-specific canon constrain a
prosecutor’s discretion to determine which overlapping
criminal statutes to charge? Benton relies on cases from outside
the criminal context to support his position. See RadLAX
Gateway Hotel, 566 U.S. at 645–46 (interpreting the
bankruptcy code); Galliano, 836 F.2d at 1367–70 (addressing
federal agency jurisdiction). He also relies on the Supreme
Court’s Busic and Simpson decisions, which involve
sentencing enhancements, not prosecutorial charging
decisions. See United States v. Comput. Scis. Corp., 689 F.2d
1181, 1187 (4th Cir. 1982) (distinguishing Busic and Simpson
from a prosecutor’s charging decision), overruled on other
grounds, Busby v. Crown Supply, Inc., 896 F.2d 833 (4th Cir.
1990). None of this precedent involves the longstanding
principle of prosecutorial discretion embraced by Batchelder.
442 U.S. at 123–24.
Implied repeal precedent, usually applied when the
Congress enacts a specific statute subsequent to a general
statute, addresses the general-specific canon in the context of
criminal charging decisions—and these cases emphasize
congressional intent. In United States v. Hsia, the defendant
argued that FECA impliedly repealed the more general false
statements statute, 18 U.S.C. § 1001. 176 F.3d 517, 525 (D.C.
Cir. 1999). We rejected Hsia’s argument and found the
government could prosecute her false statements under either
statute. Id. at 525–26 & n.5. In Galliano, supra, we found that
the Congress sought to avoid the FEC and U.S. Postal Service
promulgating conflicting regulations but expressed no intent to
require prosecutors to choose between intersecting criminal

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statutes. Id. at 525 n.5 & 526; see also United States v. Jackson,
805 F.2d 457, 459–60 (2d Cir. 1986) (rejecting a similar
implied repeal claim where “there is no express congressional
intent” to do so).
Outside the implied repeal context, courts also focus on
congressional intent in deciding this “dueling” statutes issue.
In Computer Sciences, the Fourth Circuit considered whether
the false claims statute foreclosed prosecution under the later-
enacted and more general mail fraud and wire fraud statutes.
689 F.2d at 1184. The court found “nothing in the statutory
language itself or in the legislative history of the wire fraud,
mail fraud and false claims statutes to require a determination
that prosecution under one must be at the expense of
prosecuting under the other.” Id. at 1187. Indeed, the Computer
Sciences court acknowledged the government’s right to
prosecute “under both a wire fraud or mail fraud statute and the
false claims statute.” Id. (emphases added). Considering near-
contemporaneous enactments, the Second Circuit reached a
similar result “[a]bsent more explicit indicia of Congressional
purpose to foreclose the use of [the more general statute].”
United States v. Bilzerian, 926 F.2d 1285, 1300 (2d Cir. 1991);
see also United States v. Schaffner, 715 F.2d 1099, 1102 (6th
Cir. 1983).
Benton’s lone precedent in which a court applied the
general-specific canon to restrict a prosecutor’s charging
decision is United States v. LaPorta, 46 F.3d 152 (2d Cir.
1994). But LaPorta also emphasizes the importance of
congressional intent. As relevant here, the LaPorta prosecutor
charged two defendants with two federal crimes—destroying
government property under 18 U.S.C. § 1361 and using fire “to
commit any felony” under 18 U.S.C. § 844(h)(1). 46 F.3d at
154, 156. The court found that a different, more targeted
subsection of § 844—§ 844(f), prohibiting the destruction of

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government property by fire—displaced the more general
§ 844(h)(1). Id. at 156. Because § 844(h)(1) applies if the
defendant uses fire or explosives “to commit any felony,” using
it when “a defendant is charged with destruction of government
property by fire” would render the subsection (f) specific
offense superfluous.5 Id. at 156–57 (emphasis omitted).
Inasmuch as the Congress enacted these provisions in the same
statute, such a construction was “surely not the Congressional
intent.” Id. The LaPorta court reviewed the legislative history
and concluded that the Congress intended that a prosecution for
destruction of government property by fire proceed under
§ 844(f) only. Id. at 157. The sparse caselaw that applies the
general-specific canon to a prosecutor’s charging decision,
then, turns on whether the Congress has expressed an intent to
foreclose one statute’s application.
18 U.S.C. § 1519 uses broad, but clear, language.
Submitting false campaign reporting information plainly falls
under “mak[ing] a false entry in any record, document, or
tangible object.” Filing reports is a matter “within the
jurisdiction” of the FEC, Benton, 890 F.3d at 711, and other
circuits have upheld prosecutions under § 1519 for campaign
finance offenses—including the earlier prosecution of Benton
in the Southern District of Iowa. See e.g., id.; United States v.
Emmons, 8 F.4th 454, 458 (6th Cir. 2021) (affirming
conviction under § 1519 for false corporate contributions);
United States v. Rowland, 826 F.3d 100, 111 (2d Cir. 2016)
(affirming conviction under § 1519 for falsification of a record
during an FEC investigation).
5 As the Second Circuit clarified, “where a defendant is charged
with destruction of government property by fire, the government
must proceed under § 844(f).” LaPorta, 46 F.3d at 157. Section
844(h)(1) nonetheless applies to predicate felonies other than the
destruction of government property. Id.

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Like its statutory text, Sarbanes-Oxley’s legislative history
suggests no congressional intent to foreclose § 1519’s
applicability to election-related crimes. The Senate Committee
on the Judiciary explained the provision’s broad purpose:
“people should not be destroying, altering, or falsifying
documents to obstruct any government function.” S. R EP . NO.
107-146, at 15 (2002). As noted supra, the Supreme Court has
acknowledged the statute’s applicability in a “multiplicity of
contexts.” Yates, 574 U.S. at 542 n.5. Because we find no
congressional intent in either the statute’s text or its legislative
history to prohibit § 1519’s applicability to election crimes, the
government is free to exercise its discretion to prosecute under
either or both statutes. See Benton, 890 F.3d at 711 (“[A]
defendant may properly be convicted for violations of [FECA]
and of § 1519.”).
B. Admissibility of Pardoned Conviction
Benton argues that the district court’s admission of his
2016 conviction constituted error because President Trump
pardoned him in 2020. He alleges similar error in the court’s
use of the pardoned conviction at sentencing.
1. Rule 404(b) Admissibility
Under Federal Rule of Criminal Procedure 51, a party
must preserve a claim of error in trial court. FED. R. CRIM. P.
51(b). Otherwise, plain error review applies. FED. R. C RIM. P.
52(b); FED. R. EVID. 103(e). Benton did object pre-trial to the
pardoned conviction’s admission. But he never preserved his
current challenge—that the pardon itself makes the conviction
inadmissible under Rule 404(b). Instead, he based his pre-trial
challenge on the earlier offense’s lack of clarity, arguing that
admission would require a mini trial on complex facts, the jury
would engage in propensity analysis and he would face
potential prejudice because a polarizing President issued the

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pardon. He separately argued that the pardon prevented
admission of the conviction for impeachment under Rule 609.
Because Benton did not preserve his current challenge, we
review for plain error. Greer, 593 U.S. at 507. Plain error
review requires Benton to show (1) an error; (2) that is plain—
i.e., clear or obvious; (3) and affects “substantial rights”—i.e.,
there is a “reasonable probability that, but for the error, the
outcome of the proceeding would have been different.” Id. at
507–08 (quotation omitted); see United States v. Olano, 507
U.S. 725, 734 (1993). The defendant carries the burden to
establish entitlement to relief. Greer, 593 U.S. at 508. If he
does so, then the appellate court—in its discretion—may grant
relief if the error seriously affects “the fairness, integrity or
public reputation of judicial proceedings.” Id. (quoting
Rosales-Mireles v. United States, 585 U.S. 129, 135 (2018)).
Rule 404(b) prohibits admitting evidence of “any other
crime, wrong, or act” to show criminal propensity. FED. R.
EVID. 404(b)(1). That evidence may be admitted for other
purposes, however, “such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” F ED. R. EVID. 404(b)(2). Rule
609 covers admission of a criminal conviction to impeach a
witness. FED. R. EVID. 609. Evidence of a pardoned conviction
may not be admitted for impeachment if, inter alia, it is based
on a “finding of innocence.” F ED. R. EVID. 609(c)(2).
Nothing in Rule 404(b)’s text affects the admissibility of
“bad act” evidence simply because the act resulted in a
pardoned conviction. Although Benton claims Rule 609
includes considerations unconnected to impeachment but
applicable to Rule 404(b), we have previously rejected an
invitation to read Rule 609 policies into Rule 404(b). See
United States v. Rogers, 918 F.2d 207, 210–11 (D.C. Cir. 1990)
(noting that Rule 609 governs “only the admissibility of

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evidence introduced for impeachment” and declining to read
its policies into the plain language of Rule 404(b)). We reject
Benton’s analogous invitation. And under the modern
understanding of a Presidential pardon’s effect, it “does not
blot out guilt” or create a factual fiction that conviction never
occurred. In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994)
(citing Burdick v. United States, 236 U.S. 79, 91, 94 (1915),
Bjerkan v. United States, 592 F.2d 125, 128 n.2 (7th Cir. 1975),
and United States v. Noonan, 906 F.2d 952, 960 (3d Cir.
1990)). The district court therefore committed no error in
admitting Benton’s pardoned conviction under Rule 404(b).
Even if we applied Rule 609 to interpret Rule 404(b)—so
that a pardon based on innocence could not be admitted—we
would affirm the district court’s conclusion that Benton’s
pardon did not evince his rehabilitation or innocence.6 We
review the district court’s factual finding regarding the
pardon’s basis for clear error. See Awad, 608 F.3d at 6–7
(reviewing district court’s factual findings based on
documentary evidence for clear error). The Court finds clear
error only if it “is left with the definite and firm conviction that
a mistake has been committed.” Id. at 7 (internal quotations
omitted).
We find no clear error in the district court’s conclusion that
Benton did not obtain an innocence-based pardon. Other
circuits have interpreted Rule 609(c) strictly, requiring an
“express finding” of rehabilitation or innocence. Zinman v.
Black & Decker (U.S.), Inc., 983 F.2d 431, 435 (2d Cir. 1993);
see also U.S. Xpress Enters., Inc. v. J.B. Hunt Transp., Inc.,
320 F.3d 809, 816 (8th Cir. 2003). Some Presidential pardons
have explicitly noted the pardoned individual’s innocence. See,
e.g., Prisament v. United States, 92 Ct. Cl. 434, 435 (Ct. Cl.
6 The trial court provisionally admitted the pardoned conviction
before trial to impeach Benton but he did not testify.

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1941). Often, a Presidential pardon issues “without purporting
to address . . . innocence or guilt.” United States v. Schaffer,
240 F.3d 35, 38 (D.C. Cir. 2001) (en banc) (per curiam). Like
the Schaffer pardon, Benton’s pardon is “Full and
Unconditional” but is silent as to innocence or rehabilitation.
J.A. 46; Schaffer, 240 F.3d at 38. Unlike the Prisament pardon,
the face of Benton’s pardon makes no mention of rehabilitation
or innocence. Benton places great weight on the accompanying
White House press release but it is likewise silent as to
Benton’s rehabilitation or innocence. Although it recites that
one of Benton’s sponsors—a former FEC chairman—believed
the reporting law Benton violated was “unclear and not well
established at the time,” J.A. 53–54, his belief in no way
constitutes an “express finding” of innocence, Zinman, 983
F.2d at 435. Benton’s pardon is best understood as “an act of
grace.” United States v. Wilson, 32 U.S. (7 Pet.) 150, 160
(1833).
2. Use at Sentencing
Under the Sentencing Guidelines, “[s]entences for
expunged convictions are not counted” in the computation of
criminal history. U.S.S.G. § 4A1.2(j). A conviction set aside
“for reasons unrelated to innocence or errors of law” is
counted. Id. cmt. n.10. Benton believes he received an
innocence-based pardon and so he claims the sentencing court
erroneously included the pardoned conviction in his criminal
history calculation.
We decline to review Benton’s sentencing challenge
because he waived his initial objection and invited any error
made in the PSR calculation. See Moore, 703 F.3d at 571–72;
see also Rogers, 918 F.2d at 212 (“If . . . a lawyer has
acquiesced in a ruling he once claimed was erroneous, the
lawyer must reassert his prior objection if he expects to

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preserve it for appeal.”). In Moore, a defendant filed written
objections to the PSR’s criminal history calculation. 703 F.3d
at 571. At sentencing, Moore “withdrew his earlier written
objections” and accepted the PSR’s criminal history
calculation. Id. at 571–72. We declined to review Moore’s
waived sentencing challenge on appeal. Id. at 572. Benton’s
challenge is indistinguishable from Moore. He filed a written
objection to the PSR’s inclusion of his pardoned conviction in
the criminal history calculation. But after the district judge read
the criminal history calculation at sentencing, Benton’s counsel
reserved a variance challenge and informed the court he had no
other objection. Benton acquiesced in the criminal history
calculation and thus invited any error contained therein. Id. at
571 (finding invited error under the same circumstances).
C. Jury Instructions
Benton challenges several jury instructions. He argues that
the district court erroneously instructed the jury to consider the
pardoned conviction to show identity, inter alia, even though
Benton’s identity regarding the present conviction was
undisputed. Benton also alleges error in the district court’s
instructions regarding a FECA “contribution.” We decline to
review Benton’s jury instruction challenges under the invited
error doctrine.
1. Rule 404(b) Jury Instruction
We have long held that “a litigant cannot avail himself of
an error that he induced the court under review to commit.”
Wagner v. Taylor, 836 F.2d 596, 599 (D.C. Cir. 1987). A
defendant’s intentional relinquishment or waiver of an issue
precludes an appellate court from reviewing it on appeal. See
United States v. Laslie, 716 F.3d 612, 614 (D.C. Cir. 2013)
(citing Olano, 507 U.S. at 733). A party who challenges a jury
instruction on appeal after having proposed the instruction’s

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language commits “a textbook case of invited error.” United
States v. Maradiaga, 987 F.3d 1315, 1322 (11th Cir. 2021); see
United States v. Thomas, 999 F.3d 723, 732 (D.C. Cir. 2021)
(“[W]hen a defendant makes a ‘tactical decision’ to request a
certain jury instruction, he is barred from complaining about
the instruction on appeal; any error was ‘invited’ by the
defendant.” (citations omitted)); United States v. Wiggins, 530
F.2d 1018, 1020 (D.C. Cir. 1976). Challenging a jointly
proposed jury instruction can also trigger invited error. See
Laureys, 653 F.3d at 32.
We decline to review Benton’s challenge to the Rule
404(b) instruction because any error therein was invited. The
parties jointly proposed an instruction regarding “Evidence of
Other Crimes Admitted to Show Motive, Identity, or Common
Scheme or Plan.” J.A. 123. When the government introduced
Benton’s 2016 conviction at trial, Benton approved the court’s
reading of the proposed limiting instruction—which allowed
the conviction’s use for identity only.7 The final, jointly
proposed instruction repeated the identity limitation and added
7 The court instructed the jury:
If you find that Mr. Benton committed these other
crimes, you may use this evidence only for the limited
purpose of deciding whether the circumstances of the other
crimes and the charged offenses are so similar that it is likely
that the person who committed those crimes also committed
the crimes alleged in this indictment.
If you conclude that the crimes in that prior conviction
are so similar to the charged offenses that it is likely that the
same person committed both of them, you may use this
evidence in determining whether the Government has
proved beyond a reasonable doubt that Mr. Benton is the
person who committed the election-related crimes charged
in this indictment.
You may not use this evidence for any other purpose.
J.A. 272–73 (emphases added).

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the government’s “knowingly and on purpose and willfully”
language. J.A. 386. Benton’s joint proposal of the Rule 404(b)
instruction and his approval thereof constitute invited error.
Despite our concern with a jury charge that allows it to use Rule
404(b) evidence for identity if the case presents no identity
dispute, see Lovely v. United States, 169 F.2d 386, 391 (4th Cir.
1948), our precedent bars Benton’s challenge.
2. FECA “Contribution” Instruction
We also decline to review Benton’s challenge to the FECA
“contribution” charge. The parties jointly proposed those
instructions—which included FECA’s statutory definition of
contribution: anything of value “made by any person for the
purpose of influencing any election for Federal office,” 52
U.S.C. § 30101(8)(A)(i)—and the final charge included this
statutory language.
Benton protests that his pretrial motion to dismiss
sufficiently preserved his FECA jury instruction challenge. In
United States v. Wilson, the district court had made a
“definitive and sweeping” pretrial ruling which “rendered
futile any later attempts” by the defendant to renew his
objection. 26 F.3d 142, 160 (D.C. Cir. 1994). Following such
an unconditional and final pretrial ruling, the defendant had no
obligation to repeat his “concerns at the time when the jury was
instructed.” Id. at 159. Benton’s motion to dismiss argued that
the indictment failed to allege that Vasilenko’s general purpose
was to influence an election. The district court dismissed the
motion but not with the definitive and final language used in
Wilson. It found Benton’s indictment “sufficiently pled” and
noted that the indictment need not “define down the statutory
term[ ] of ‘contribution.’” J.A. 93. And, critically, the court
granted the motion “without prejudice so that the defense may
raise arguments about these issues in its case in chief.” J.A. 94.

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Benton failed to take up the court’s offer and, accordingly,
failed to adequately preserve his jury instruction challenge on
appeal.
3. Sufficiency of the Evidence on FECA Charge
Benton repackages his FECA jury instruction challenge as
a sufficiency-of-the-evidence claim. If the government
produces insufficient evidence to satisfy its burden of proof,
the Double Jeopardy Clause requires acquittal. Reynoso, 38
F.4th at 1091. According to Benton, the government produced
insufficient evidence of Vasilenko’s subjective, primary
purpose to influence an election and thus he seeks a judgment
of acquittal. In Reynoso, the defendant made both a jury
instruction challenge and a sufficiency-of-the-evidence claim.
Id. at 1090. After trial but before appeal, the Supreme Court, in
Rehaif v. United States, 139 S. Ct. 2191 (2019), determined that
a felon-in-possession conviction required proof of the
defendant’s knowledge of his felon status. Reynoso, 38 F.4th at
1090. Nevertheless, we explained that a sufficiency-of-the-
evidence claim was “unavailable.” Id. The government was not
required to prove the knowledge element at Reynoso’s trial and
so we described the insufficiency claim as a “non sequitur.” Id.
at 1091. Instead, “the challenge is ‘properly understood as a
claim of trial error’ in failing to instruct the jury on the omitted
element.” Id. (quoting United States v. Johnson, 979 F.3d 632,
637 (9th Cir. 2020)).
Reynoso requires that we reject Benton’s sufficiency-of-
the-evidence challenge. The law of our circuit at the time of
trial did not require the government to prove Vasilenko’s
primary purpose. See Reynoso, 38 F.4th at 1091 (citing United
States v. Kim, 65 F.3d 123, 126–27 (9th Cir. 1995)). And
Reynoso’s holding “is equally true as to elements that the law
at the time of appeal does not require the government to prove.”

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United States v. Brock, 94 F.4th 39, 47 (D.C. Cir. 2024)
(emphasis added). Because no court has yet required a
demonstration of primary purpose under FECA’s definition of
“contribution,” we find Benton’s insufficiency claim to be a
“non sequitur.” Reynoso, 38 F.4th at 1091. “[A] defendant
cannot make out a sufficiency challenge as to offense elements
that the government had no requirement to prove at trial under
then-prevailing law.” Id. Otherwise, a defendant could
repackage a claim of jury instruction error as a sufficiency-of-
the-evidence challenge to reach a result of acquittal. We reject
Benton’s attempt to do so here.
* * *
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.

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