United States v. Kirkland (330 F. Supp. 2d 1151, 2004)

OPINION, FINDINGS, AND VERDICTS

BROWN, District Judge.

Capital Consultants, Inc. (CCI), was a Portland investment firm that went into receivership in September 2000. CCI managed investments for various union employee pension benefit plans and welfare benefit plans subject to 18 U.S.C. § 1954. When CCI failed, the plans suffered catastrophic financial losses, which, in turn, resulted in significantly reduced union pensions for countless retired workers and produced extensive civil litigation and multiple criminal investigations and prosecutions. As a result of the criminal investigations, the Grand Jury indicted Dean Kirkland, Gary Kirkland, and Robert Legino on August 22, 2002, and charged them with various criminal acts.

Dean Kirkland was the principal salesperson with CCI. Gary Kirkland is Dean Kirkland’s father and was a trustee and a co-chairman of the trusts of two plans based in Portland, Oregon, that invested funds under the management of CCI: the 401(k) Retirement Fund of the Office of Professional Employees International Union (OPEIU), Local 11, and the Western States Local Union Trust Fund of the OPEIU. In addition, Gary Kirkland was a trustee and co-chairman of the Western States Pension Trust. Robert Legino was a trustee of the trusts of three plans based in Denver, Colorado, that invested funds under the management of CCI: the International Brotherhood of Electrical Workers (IBEW) Eighth District Electrical Pension Plan, the IBEW Eighth District Electrical Pension Fund Annuity Plan, and the Electrical Industry Benefit Vacation and Paid Holiday Fund (collectively, the Eighth District plans). Legino also was a co-chairman of the Pension Plan.

On September 8, 2003, the Grand Jury issued a 57-Count Second Superseding Indictment in which all Defendants are charged in multiple counts with illegally giving or receiving gratuities in violation of 18 U.S.C. § 1954. In addition, Dean Kirkland is charged in multiple counts with wire fraud in violation of 18 U.S.C. § 1343 arising from his submission to CCI of false claims for reimbursement of business expenses. Finally, Dean Kirkland is charged in a single count with obstruction of justice in violation of 18 U.S.C. § 1503 arising from his conduct in response to the Grand Jury investigation. The Second Superseding Indictment also includes two forfeiture counts: one against Dean Kirkland and Gary Kirkland and one against Dean Kirkland only.

This case was tried to the Court beginning April 20, 2004. After hearing testimony from 43 witnesses and receiving voluminous exhibits, the Court took the matter under advisement on May 11, 2004. Having weighed and evaluated all of the evidence and, after applying the same standards as required of a jury when making findings of fact and reaching a verdict in a criminal case, the Court renders the following Verdicts:

As to Dean Kirkland, the Court finds Defendant is NOT GUILTY of illegally giving gratuities to Robert Legino as charged in Counts 1 and 2; is NOT GUILTY of illegally giving gratuities to Gary Kirkland as charged in Counts 3, 12, 13,14,16,19, 20, and 21; is NOT GUILTY of illegally giving a gratuity to Blaine Newman as charged in Count 10; and is NOT GUILTY of illegally giving gratuities to Robert Mayhew as charged in Counts 10, 14, and 18.

The Court also finds beyond a reasonable doubt that Dean Kirkland is GUILTY of illegally giving gratuities to John Lon-tine as charged in Counts 4, 7, 11, and 15; is GUILTY of illegally giving gratuities to Robert Legino as charged in Counts 5, 8, 10, 14, 17, and 19; is GUILTY of illegally giving gratuities to Dennis Talbott as charged in Counts 9, 10, and 14; is GUILTY of wire fraud as charged in Counts 42, 43, 44, 45, 46, 47, 48, 49, 51, 52, 53, and 54; and is GUILTY of obstruction of justice for lying to federal agents on October 20, 2000, as charged in Count 55.

As to Gary Kirkland, the Court finds Defendant is NOT GUILTY of illegally receiving gratuities as charged in Counts 30, 31, 33, 34, 35, 36, 37, 38, 39, 40, and 41.

As to Robert Legino, the Court finds Defendant is NOT GUILTY of illegally receiving gratuities as charged in Counts 22, 23, 24, 25, 26, 27, 28, and 29.

As to Forfeiture Counts 56 against Gary Kirkland and Dean Kirkland and Count 57 against Dean Kirkland only, the Court will conduct further proceedings in due course.

WIRE FRAUD: COUNTS 42-54 AGAINST DEAN KIRKLAND

I. The Law

18 U.S.C. § 1343 provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purposes of executing such scheme or artifice, shall be fined under this title or imprisoned not more than five years or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

"To convict a defendant of wire fraud, the government must prove {beyond a reasonable doubtj that a defendant (1) participated in a scheme to defraud; and (2)used the wires to further the scheme.” United States v. Ciccone, 219 F.3d 1078, 1083 (9th Cir.2000) (citation omitted).

The government also must prove beyond a reasonable doubt the defendant’s specific intent to commit the crime. Id. at 1083. In addition, the government must prove beyond a reasonable doubt that the falsehood giving rise to the scheme to defraud was material. Neder v. U.S., 527 U.S. 1, 22, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

As to each of the wire fraud counts against Dean Kirkland, therefore, the government must prove beyond a reasonable doubt the following elements:

1. Dean Kirkland made up a scheme to defraud CCI to obtain money or property by making false statements in his claims for business expense reimbursements,

2. Dean Kirkland knew the statements were false,

3. The statements were material because they would reasonably influence CCI to authorize the payment of money to Dean Kirkland,

4. Dean Kirkland acted with the intent to defraud CCI, and

5. Dean Kirkland used interstate wires to carry out an essential part of the scheme to defraud.

II. Elements 2 and 3.

Dean Kirkland concedes Element 2 as to all of the wire fraud counts. In any event, the Court finds beyond a reasonable doubt that each of Dean Kirkland’s statements underlying each of the wire fraud counts was false.

In addition, as to Element 3, the Court finds beyond a reasonable doubt that each of Dean Kirkland’s false statements was material because, in fact, each false statement influenced CCI to authorize the payment of money to Dean Kirkland.

Accordingly, the Court finds beyond a reasonable doubt that the government has proved Elements 2 and 3 of each wire fraud count.

III. Elements 1 and 4: Intent to Defraud.

As detailed below, Dean Kirkland admits he made a false reimbursement statement in connection with each wire fraud count. As to Elements 1 and 4 of each wire fraud count, however, Dean Kirkland denies he “made up” any “scheme to defraud” CCI and denies he had any intent to defraud CCI because Jeffrey Grayson, the founder, principal owner, and chief executive of CCI, allegedly approved each false reimbursement claim in advance. According to Dean Kirkland, Jeffrey Grayson did so to compensate Dean Kirkland with money and property over and above his considerable base salary and commissions, which, by the end of his employment at CCI, were approximately $1 million a year and were separate from and in addition to his legitimately reimbursable business expenses. Thus, although Dean Kirkland’s admissions support a finding that he participated in a “scheme” to submit false reimbursement claims to CCI, the government still must prove beyond a reasonable doubt that this was a “scheme to defraud CCI” (Element 1) and that Dean Kirkland acted with the “intent to defraud” CCI (Element 4). For purposes of the Court’s analysis under the circumstances of this case, these elements merge.

The Court summarizes the government’s wire fraud allegations and Dean Kirkland’s pertinent admissions and other testimony on a count-by-count basis as follows:

The government alleges Dean Kirkland falsely represented to CCI on January 8, 1998 (Count 42); January 14, 1998 (Count 43); and January 12, 1998 (Count 44), that the purpose of the expenses for which he claimed reimbursement on each of these dates was a “client raffle.” Dean Kirkland admitted he used these false “raffle” entries to obtain reimbursement for a Freedom Arms Revolver (Counts 42 and 43) and a pair of Swarovsky binoculars (Count 44). In addition, Dean Kirkland conceded he did not purchase any of these items for a client raffle, he received reimbursement for each of them, and he kept them as personal property. He testified, however, he submitted these false expense reports only with Jeffrey Grayson’s express, knowing, and advance approval.

In Count 45, the government alleges Dean Kirkland falsely represented to CCI that he purchased artwork as an anniversary gift for Robert Legino and his wife. In fact, Dean Kirkland admitted he used this false entry to obtain reimbursement for his personal purchase of another handgun in May 1998. When asked why he did not use a false “client raffle” entry to support this reimbursement claim, Dean Kirkland testified Jeffrey Grayson counseled him against describing all such false entries as “client raffles” because “you can only have so many raffles or fundraisers.” Instead Dean Kirkland claims Jeffrey Grayson told him to “put it [the purchase of the handgun] down as a dinner or something else and just let me know ahead of time.”

In Count 46, the government alleges Dean Kirkland falsely represented to CCI on August 1, 1998, that he purchased a shotgun for a union client. In fact, Dean Kirkland admitted he used this entry to claim reimbursement for the personal purchase of a Marlin rifle on August 1, 1998, on the occasion of his son’s birth. In Count 47, the government alleges Dean KirMand falsely represented to CCI on August 12, 1998, that he purchased a second Marlin rifle for a “client raffle.” Dean Kirkland admitted he used this entry to claim reimbursement for the personal purchase of a second Marlin rifle to match the one he obtained earlier for his son.

Although Dean KirMand conceded these reimbursement claims also were false, he maintained Jeffrey Grayson authorized each of them in advance. In fact, Dean KirMand testified he bought the two Marlin rifles at Jeffrey Grayson’s suggestion “to go out and get something nice” that he could share with his son when he was older.

In Count 48, the government alleges Dean KirMand falsely represented to CCI that he spent $677 on October 4, 1999, for dinner with clients. Again, Dean Kirkland admitted he made this false entry and CCI “reimbursed” $677 to him based on that false entry. Dean Kirkland testified, however, that Jeffrey Grayson authorized this false submission.

In Count 49, the government alleges Dean Kirkland falsely represented to CCI that he spent $3,426 for membership dues to the Minnesota Horse and Hunt Club on November 26, 1999. Dean Kirkland admitted he altered an invoice submitted with his expense reimbursement claim of November 1999 by inserting a “3” in front of the actual amount to obtain $3,000 in cash to purchase three Browning shotguns, again purportedly with Jeffrey Grayson’s approval.

In Count 51, the government alleges Dean Kirkland falsely represented to CCI on March 31, 2000, that he spent $2,543 for a fishing trip to Pesca, Panama. Dean Kirkland admitted he created this false receipt. He testified he did so to obtain funds to purchase two Weatherby rifles for Robert Legino and Robert Mayhew to use on a future hunting trip. Again Dean Kirkland maintained Jeffrey Grayson approved this false claim in advance.

In Count 52, the government alleges Dean Kirkland falsely represented to CCI that he purchased a gas barbeque on May 22, 2000, for a client raffle. In fact, Dean Kirkland admitted he obtained the gas barbeque, a cart, and cover for his personal use. Although Dean Kirkland denied he falsely coded the receipt for this expense as a “raffle,” he conceded CCI reimbursed him for this expense on that basis. In any event, Dean Kirkland testified Jeffrey Grayson told him “to go buy myself a nice grill and so I did.”

In Count 53, the government alleges Dean Kirkland falsely sought reimbursement from CCI on July 31, 2000, for a client outing. In fact, Dean Kirkland admitted he used this false entry to obtain reimbursement for a new snowmobile trailer. Although Dean Kirkland testified he did not direct this entry to be coded as a “client outing,” he claims he obtained Jeffrey Grayson’s advance approval for the trailer purchase. According to Dean Kirkland, Jeffrey Grayson authorized him to seek reimbursement for one-third of the cost of the trailer because he sometimes took clients on snowmobile outings.

In Count 54, the government alleges Dean Kirkland created a false receipt on July 31, 2000, for a client outing. In fact, Dean Kirkland admitted he used this false entry to obtain $1,430, which, in turn, he used to purchase another Weatherby rifle for a future hunt. Dean Kirkland contended, however, Jeffrey Grayson authorized this false submission.

Thus, although Dean Kirkland generally admitted he knowingly submitted false statements for expense reimbursements as alleged in each of the wire fraud counts, he asserted Jeffrey Grayson explicitly approved each false submission in advance. Dean Kirkland maintained, therefore, he did not act with any intent to defraud CCI and, at a minimum, his testimony concerning his claimed agreement with Jeffrey Grayson creates reasonable doubt as to this element of the wire fraud counts. The Court, however, finds little, if any, substantive evidence to corroborate Dean Kirkland’s testimony in this respect, and, in any event, the Court finds his testimony is not credible as to many material issues.

Jeffrey Grayson is not available to testify. Neither Shelly Connover, Dean Kirkland’s former secretary, nor Barclay Gray-son, who is Jeffrey Grayson’s son and was president of CCI from January 1999 until September 2000, the period that encompasses the acts charged in Counts 48-54, corroborated any such special agreement between Jeffrey Grayson and Dean Kirkland. The only remaining evidence that could support Dean Kirkland’s account was testimony by Hal Porter, who was President of CCI from 1995 until January 1999, the period that encompasses the acts charged in Counts 42-47.

Porter testified he discussed false “client raffle” entries with Jeffrey Gray-son. Based on these discussions, it was Porter’s understanding that Jeffrey Gray-son had sometimes “approved” the use of false “raffle” entries for business expenses that were otherwise deductible. Porter recalled one instance when Jeffrey Gray-son approved a false “client raffle” entry, which, in fact, was to reimburse Dean Kirkland for a cash political contribution. Porter, however, was not aware of any instance when Jeffrey Grayson approved reimbursement based on a receipt “with false information on the back of it, or the front of it for that matter.” Nonetheless, there is overwhelming evidence that, at least until sometime in 1999, Dean Kirkland routinely supported his expense reimbursement claims with receipts on which he wrote detailed false information. At best, Porter’s testimony merely supports Dean Kirkland’s claim that Jeffrey Grayson permitted the use of false “client raffle” entries in order to write off CCI business expenses that were otherwise legitimately deductible such as a political contribution. The Court, however, finds Porter’s testimony does not show Jeffrey Grayson authorized Dean Kirkland to use false entries in expense reports in order to be reimbursed for expenses unrelated to any CCI business purpose or to obtain money or property for his personal gain. The Court, therefore, concludes Porter’s testimony does not corroborate Dean Kirkland’s account.

As to whether Jeffrey Grayson authorized Dean Kirkland’s false expense reports, therefore, the Court is left with only Dean Kirkland’s testimony. The Court observed Dean Kirkland’s demeanor throughout this lengthy trial, took into account his significant interest in the outcome of the case, and took care to evaluate the nature and quality of his testimony in light of all of the other evidence in the case and the fact that the government was unable to produce Jeffrey Grayson as a witness. In short, the Court finds Dean Kirkland’s testimony was not credible as to many material issues. Three clear examples of Dean Kirkland’s lack of candor concerning the wire fraud counts in general occurred during his cross-examination about the expense reports underlying Counts 49, 51, and 53.

As noted, as to Count 49, Dean Kirkland admitted he altered an invoice submitted with his expense reimbursement claim of November 1999 by inserting a “3” in front of the actual amount to obtain $3,000 in cash. On direct examination, Dean Kirkland testified these funds were reimbursements for the purchase of three Browning shotguns. On eross-examination, however, the government established Dean Kirkland also submitted an earlier false expense claim in October 1999 for one Browning shotgun and a later false expense claim in December 1999 for two additional Browning shotguns. Thus, Dean Kirkland submitted expense reimbursement claims for six such shotguns during this period. Notably, ATF records for the same time reflect Dean Kirkland purchased only three Browning shotguns. Although Dean Kirkland presented as a confident and articulate witness during much of his direct testimony, his demean- or changed dramatically during cross-examination when he was confronted with the obvious double, false expense reimbursement claims for the purchase of the same Browning shotguns. In short, the Court finds Dean Kirkland’s testimony was not credible when he tried to reconcile the irreconcilable by suggesting he also might have purchased three used Browning shotguns during this same period in addition to the three new Browning shotguns.

As noted, as to Count 51, Dean Kirkland admitted he created the false “Pesca Panama” receipt. On direct examination, Dean Kirkland testified he created this receipt to support a $2,543 reimbursement claim in March 2000 for the purchase of two Weatherby rifles for Robert Legino and Robert Mayhew to use on a future hunting trip. On cross-examination, however, Dean Kirkland conceded he also obtained $3,800.01 reimbursement for three Weath-erby rifles two months earlier in January 2000. Thus, Dean Kirkland submitted false expense reimbursement claims for five Weatherby rifles during this period, but ATF records only confirm Dean Kirkland purchased three of them during this time. While Dean Kirkland attempted to explain this additional, obvious discrepancy, he continued to display a strained demeanor. Again, the Court finds this testimony was not credible.

As to Count 53, Dean Kirkland testified on direct examination that Jeffrey Grayson authorized him to obtain reimbursement from CCI for one-third of the cost of a snowmobile trailer valued at $7,000. Dean Kirkland traded in his used trailer and received a $2,200 credit against that purchase price. Dean Kirkland testified Jeffrey Grayson then agreed CCI would reimburse Kirkland for one-half of the $4,800 balance. On cross-examination, Dean Kirkland admitted he submitted an expense report dated August 1, 2000, in which he falsely sought reimbursement of $2,400 for a “client outing” when his actual purpose was to obtain what he contended was CCI’s share of the trailer purchase price. The government, however, confronted Dean Kirkland with another $2,400 expense reimbursement claim submitted in September 2000 for “office equipment.” Dean Kirkland testified this entry “could be” another claim for the same $2,400 balance of the cost of the trailer. Although Kirkland tried to explain this inconsistency by suggesting the second $2,400 claim “could have been a mistake,” the Court finds this testimony was not credible.

Having found Dean Kirkland’s testimony was not credible as to Counts 49, 51, and 53, the Court does not credit any of Dean Kirkland’s testimony concerning the remaining wire fraud counts and, in particular, his assertion that Jeffrey Grayson authorized him to make false expense reimbursement claims for his personal gain.

Nonetheless, the Court has considered Dean Kirkland’s arguments about the general culture of indulgence at CCI, Jeffrey Grayson’s alleged desire to motivate and to reward Dean Kirkland as a “super employee,” and Jeffrey Grayson’s admitted erimi-nal conduct in connection with the collapse of CCI. Dean Kirkland argues these circumstances, at the very least, create some uncertainty as to whether Jeffrey Grayson did or did not authorize Dean Kirkland’s false expense submissions. Having considered all of the evidence on this issue, the Court rejects this argument and finds the following additional facts beyond a reasonable doubt:

Jeffrey Grayson was a sophisticated businessman and financier. When Jeffrey Grayson wanted to reward, to motivate, and to compensate productive employees with “perks,” he found legitimate ways to do so. For example, Jeffrey Grayson allowed Linda Lucas, a CCI manager, to use a Mercedes as her company car. Jeffrey Grayson also allowed Hal Porter to use CCI’s membership at a prestigious Oregon country club. In each instance, CCI would be able to treat these “perks” as business expenses. Although Jeffrey Grayson may have been willing to use false “client raffle” entries to describe potentially questionable client expenses, he obviously did not need a subterfuge to reward Dean Kirkland and to take advantage of tax benefits at the same time.

In short, there is not any credible explanation as to why Jeffrey Grayson would endorse a scheme to use false expense entries so that Dean Kirkland could obtain money or property for his personal benefit over and above his already generous compensation package. There is, however, overwhelming and uncontradicted evidence that Dean Kirkland knowingly submitted the false expense statements that underlie the wire fraud counts for his personal gain. In any event, when Dean Kirkland learned a receiver was about to close down CCI, he instructed Shelly Connover to remove his expense reports from CCI’s office because they were “nobody’s business.” This statement speaks volumes about Dean Kirkland’s true intent when he routinely submitted false expense reimbursement claims.

Having considered all of the evidence on these elements, the Court finds beyond a reasonable doubt that Dean Kirkland intended to defraud CCI for his personal gain when he submitted each of the false expense reimbursement statements underlying each of the wire fraud counts. Accordingly, the Court finds beyond a reasonable doubt that the government has proved the “intent to defraud” requirement of Elements. 1 and 4 of each wire fraud count.

IV. Element 5: Use of Interstate Wires.

Finally, as to each wire fraud count, the government also must prove beyond a reasonable doubt that Dean Kirkland used interstate wires to carry out an essential part of the scheme to defraud. The government relies on alternative factual premises.

As to Counts 42, 43, 44, 45, 46, 47, 52, and 53, the government points to Dean Kirkland’s use of a VISA card at the point of each purchase, which, according-to the government, generated an interstate wire transmission that produced an authorization code necessary to complete each transaction. Dean Kirkland does not dispute the government’s evidence that an interstate wire transmission occurred in connection with each of the authorized credit card transactions underlying these counts.

As to Counts 48, 49, 51, and 54, the government notes Dean Kirkland used the CCI reimbursement checks underlying each of these counts as a credit on his VISA account. The government alleges an interstate wire transmission occurred each time Dean Kirkland’s bank processed such a credit to Dean Kirkland’s VISA account. Again, Dean Kirkland does not dispute the government’s evidence that an interstate wire transmission occurred each time the bank processed such a credit.

According to Dean Kirkland, however, each wire transmission that occurred in connection with each of these counts was merely incidental to and not an “essential part” of any scheme to defraud. Put another way, Dean Kirkland contends the government must prove it was necessary to use interstate wires to carry out such a scheme. That, however, is not the law, and Dean Kirkland’s reliance on Ferguson v. Maita, 162 F.Supp.2d 433 (W.D.N.C.2000)(a civil racketeering case), and United States v. Roach, 296 F.3d 565 (7th Cir.2002)(a sentencing case) is misplaced. To violate the wire fraud statute, the “[wire] transmission need not be essential to the success of the scheme to defraud ... if the transmission is ... incident to an essential part of the scheme.” United States v. Hasson, 333 F.3d 1264, 1273 (11th Cir.2003)(citing Schmuck v. United States, 489 U.S. 705, 712, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989)). See also United States v. Hubbard, 96 F.3d 1223, 1228-29 (9th Cir.1996) (court construes mail fraud statute in a similar fashion).

Having considered all of the evidence on this issue, the Court finds beyond a reasonable doubt that the government has proved Dean Kirkland used interstate wires to carry out an essential part of the scheme to defraud that underlies each of the wire fraud counts. Accordingly, the Court finds beyond a reasonable doubt that the government has proved Element 5 of each of the wire fraud counts.

V. Verdicts on Wire Fraud Counts.

Having weighed and evaluated all of the evidence, the Court finds the government has proved beyond a reasonable doubt all of the elements of each of the wire fraud counts. Accordingly, the Court finds beyond a reasonable doubt that Dean Kirkland is GUILTY of Counts 42, 43, 44, 45, 46, 47, 48, 49, 51, 52, 53, and 54.

OBSTRUCTION OF JUSTICE: COUNT 55 AGAINST DEAN KIRKLAND

I. The Law

18 U.S.C. § 1503(a) provides in pertinent part:

Whoever, corruptly ... endeavors to influence ... or impede any grand or petit juror, or officer in or of any court of the United States, ... or corruptly ... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subpar-agraph (b).

To convict a defendant of obstruction of justice, the government must prove the defendant did an act intended to obstruct justice. United States v. Rasheed, 663 F.2d 843, 852 (9th Cir.1981). The destruction or concealment of subpoenaed documents constitutes obstruction of justice in violation of 18 U.S.C. § 1503. Id. A defendant who lies to an FBI agent when the defendant knows the agent is acting as an arm of the grand jury by serving a grand jury subpoena is subject to liability for obstruction of justice under § 1503. United States v. Hopper, 177 F.3d 824, 830 (9th Cir.1999) (citing United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995)). See also United States v. Plascencia-Orozco, 768 F.2d 1074 (9th Cir.1985)(giving a false identity to a federal magistrate, thereby preventing the magistrate from gathering facts necessary to sentence a defendant, constitutes obstruction of justice under § 1503).

To establish obstruction of justice as charged against Dean Kirkland in Count 55, therefore, the government must prove beyond a reasonable doubt the following elements:

1. On or about September and October 2000, a federal grand jury impaneled in the District of Oregon was conducting an inquiry into alleged violations of federal law by CCI, related entities, and/or individuals;

2. Dean Kirkland knew the grand jury proceeding was taking place; and

3. Dean Kirkland acted or endeavored to act corruptly with the intent to obstruct or to impede the grand jury proceeding

a. by destroying documents he knew were material to the investigation in late September 2000, and/or

b. by lying to federal agents when he falsely claimed on October 20, 2000, that he previously gave all of his CCI documents back to CCI.

II. Element 1.

Having considered all of the evidence pertinent to this element, the Court finds beyond a reasonable doubt that a federal grand jury was impaneled in the 'District of Oregon beginning in April 2000 and continuing through September and October 2000 and beyohd to investigate alleged violations of federal law by CCI, “related entities” such as Wilshire and Sterling, and/or individuals. The Court, therefore, finds beyond a reasonable doubt that the government has established Element 1 of the obstruction count.

III. Elements 2 and 3.

Because the government has two different factual premises on which it predicates the obstruction count, the Court considers the sufficiency of the evidence for Elements 2 and 3 separately for each premise.

A. Premise A: Destruction of CCI Office Documents in Late September 2000.

1. Element 2. To meet its burden with respect to Element 2 under this factual premise, the government first points to two newspaper articles published in The Oregonian that disclosed a federal grand jury was investigating Wilshire and its dealings with CCI. In his direct testimony, Dean Kirkland admitted he read the first article dated April 30, 2000, near the time it was published. Dean Kirkland also admitted he read' the second article dated September 3, 2000, which reported The Oregonian’s own investigation of CCI’s gifts of hunting and fishing trips to union trustees. This article was titled “Investment Firm’s Gifts to Trustees Questioned,” emphasized Dean Kirkland’s role as' “host and chief organizer” of the trips, and referred to the “larger investigation” in which the Grand Jury was “delving into [Jeffrey] Grayson’s placement of union funds in the ill-fated former Wilshire Credit Corp.”

In addition, the government relies on the testimony of Milo Petranovieh, a lawyer representing CCI who met with Dean Kirkland before and after the September 3, 2000, newspaper article. The Court finds Petranovich’s testimony was credible. Based on Petranovich’s testimony, the Court finds the following additional facts beyond a reasonable doubt:

In summer 2000, Petranovich was representing CCI in an ongoing SEC investigation and learned SEC investigators wanted to interview Dean Kirkland. Petranovich first met with Dean Kirkland in late August 2000 to determine whether Petrano-vich also could represent Dean Kirkland as a CCI employee in the SEC investigation. There was not any discussion in that meeting about a grand jury investigation.

After this first meeting, Petranovich learned the SEC investigators were focusing on “potential criminal aspects” of hunting and fishing trips Dean Kirkland hosted for union trustees. Petranovich met again with Dean Kirkland shortly after Labor Day, which was September 4, 2000. At this meeting, Petranovich told Dean Kirkland that SEC investigators were making “serious criminal allegations” about Dean Kirkland and the hunting and fishing trips, and it was necessary for him to retain “separate counsel and a criminal defense lawyer.” There still was not any discussion about a grand jury investigation.

Petranovich’s testimony proves Dean Kirkland knew the SEC was investigating CCI and was making allegations about possible criminal misconduct on the part of Dean Kirkland, but it does not show Dean Kirkland knew anything about the Grand Jury proceedings. The Court, therefore, finds Petranovich’s testimony is not a factor as to Element 2 under this factual premise.

Having considered all of the evidence pertinent to Element 2 in the context of Premise A, the Court finds beyond a reasonable doubt that Dean Kirkland read the first newspaper article around April 2000 and read the second newspaper article in early September 2000. As to Element 2 under this premise, the Court, therefore, finds the government proved beyond a reasonable doubt that Dean Kirkland became aware around April 2000 that the Grand Jury was investigating CCI and its relationship with Wilshire, and he was aware in early September 2000 that the Grand Jury investigation was still continuing.

2. Element 8a. The government did not offer any explicit evidence about the scope of the Grand Jury investigation in September and October 2000. Although it follows that Dean Kirkland knew at this timé that the Grand Jury would be interested in documents concerning CCI and Wilshire, the government did not prove Dean Kirkland ever had possession of any such CCI documents during this period or that Dean Kirkland was aware which documents might be material to the Grand Jury investigation. In addition, despite the fact that the Court finds, as detailed below, Dean Kirkland destroyed CCI “office documents” in late September 2000, the government did not prove he destroyed documents concerning Wilshire’s dealings with CCI or any other documents material to the Grand Jury investigation at that time. Thus, the government did not prove Dean Kirkland “acted or endeavored to act corruptly with the .intent to obstruct or to impede the grand jury proceeding” with respect to the destruction of documents as required by Element 3a of this premise.

Accordingly, the Court finds the government has not proved beyond a reasonable doubt that Dean Kirkland obstructed justice under the “destruction of CCI office documents” premise of Element 3a.

B. Premise B: Lying to Federal Agents on October 20, 2000.

1. Element 2. The Court incorporates its analysis and findings with respect to Element 2, Premise A, that Dean Kirkland became aware around April 2000 that the Grand Jury was investigating CCI and its relationship with Wilshire, and he was aware in early September 2000 that the Grand Jury investigation was still continuing. In addition, the Court finds credible the testimony of FBI Agent Joseph LaMo-nica, which establishes the following additional facts beyond a reasonable doubt:

On October 20, 2000, at Dean Kirkland’s residence in Camas, Washington, Agent LaMonica and another agent served Dean Kirkland with a “Subpoena to Testify Before Grand Jury.” The Subpoena required Dean Kirkland to appear before the Grand Jury on November 7, 2000. The Subpoena also stated:

YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s):

Provide any and all records in any form relating to Capital Consultants and/or related parties, entities, or clients, including but not limited to any records removed from the premises of Capital Consultants.

As of October 20, 2000, therefore, the Court finds beyond a reasonable doubt that Dean Kirkland knew the Grand Jury wanted him to appear before it and to produce any and all documents that were within the scope of the Subpoena. Accordingly, the Court finds the government has met its burden with respect to Element 2 under this factual premise.

2. Element 3b. As noted, the government also must prove Element 3b beyond a reasonable doubt; i.e., that Dean Kirkland “acted or endeavored to act corruptly with the intent to obstruct or to impede the grand jury proceeding ... by lying to federal agents when he falsely claimed on October 20, 2000, that he previously gave all of his CCI documents back to CCI.” Based on Agent LaMonica’s testimony, the Court also finds beyond a reasonable doubt that, in response to receiving the Subpoena, Dean Kirkland told Agent LaMonica on October 20, 2000, he “did not have any Capital Consultants records at the residence” and he “had turned over any records” that he had to CCI or to Shelly Connover. The government contends Dean Kirkland lied when he made these statements because, according to the government, Dean Kirkland destroyed CCI “office documents” on or about September 21, 2000.

Having considered all of the evidence with respect to Dean Kirkland’s possession of CCI documents at his home office generally, the Court finds the following additional facts beyond a reasonable doubt:

Dean Kirkland worked for CCI as a full-time salesman from at least 1995 until CCI went into receivership on September 21, 2000. Although Dean Kirkland had an office at CCI’s Portland place of business, he frequently worked out of his home office in Camas, Washington, when he was not “on the road.” When Dean Kirkland was working at home, Shelly Connover faxed him client correspondence and sent him “presentation books” by Federal Express, sometimes daily. Clients such as John Lontine, a Denver-based trustee, also mailed correspondence to Dean Kirkland at his home office. In fact, Dean Kirkland regularly invited clients and various outfitters for CCI-funded hunting and fishing trips to correspond with him at his home office, and they did. Sometimes Dean Kirkland also took documents from the CCI office and did not return them.

Although these facts strongly suggest Dean Kirkland must have had CCI office documents at his home office in late September 2000, the only explicit evidence that shows Dean Kirkland possessed and destroyed any such documents at that time was the testimony of Barclay Gray-son. Although Dean Kirkland and Gary Kirkland insist the Court should not believe Barclay Grayson because of his felony conviction for mail fraud and his ongoing obligations to this Court on supervised release, the Court, nonetheless, finds Barclay Grayson’s testimony was credible throughout these proceedings. Having carefully weighed and considered Barclay Grayson’s testimony, the Court finds the following additional facts beyond a reasonable doubt:

Shortly after the Receiver took over the operations of CCI on September.21, 2000, Barclay Grayson telephoned Dean Kirkland, who was at home. Dean Kirkland told Barclay Grayson that he was “outside having a cigar, a cognac, and having a bonfire.” When Barclay Grayson asked Dean Kirkland what he was burning, he answered, “Office documents.”

Later, after federal agents served Dean Kirkland with the Grand Jury Subpoena on October 20, 2000, Barclay Grayson and Dean Kirkland had another telephone conversation. Dean Kirkland laughed and told Barclay Grayson that two federal agents had come to Dean Kirkland’s residence, and he had “invited them to look at anything and everything that they wanted to. And it didn’t really matter, because ... the documents were gone.”

In response to Barclay Grayson’s testimony, Dean Kirkland conceded during direct examination that he made “those statements” to Barclay Grayson about burning documents. Dean Kirkland suggested, however, that, after “wracking ... [his] brain,” he must have been referring to burning CCI brochures, which he frequently used as “fire starters” for the wood-burning stove in his home office. In any event, Dean Kirkland explicitly denied he burned any CCI “office documents.” The Court, however, does not find this testimony credible. Dean Kirkland’s term “bonfire” and his apparently celebratory behavior in smoking a cigar and drinking cognac do not fit the scenario of merely burning brochures that he ordinarily used as “fire starters” in his wood stove. Moreover, if brochures were the only documents Dean Kirkland burned, it does not follow that Dean Kirkland would happily tell Barclay Grayson “it didn’t really matter” whether the agents looked for CCI office documents because they were “gone.”

Accordingly, the Court finds beyond a reasonable doubt that Dean Kirkland burned CCI “office documents” other than sales brochures shortly after the Receiver took over CCI on September 20, 2000.

As noted, the government also claims Dean Kirkland lied to federal agents on October 20, 2000, when he told them that he “did not have any Capital Consultants records at the residence” and that he “had turned over any records” he had either to CCI or to Shelly Connover. Having considered all of the evidence on this issue, the Court finds the following additional facts beyond a reasonable doubt:

Late at night on September 20, 2000, Dean Kirkland telephoned Connover at home, told her CCI was closing down the next day, and directed her to meet him at a local bar. When Connover arrived at the bar early on September 21, Dean Kirkland told her that CCI was closing because it allegedly was involved in “a Ponzi scheme.” As noted, Dean Kirkland also asked Connover to go to the CCI office to retrieve his “expense reports” because they were “nobody’s business.” Connover complied.

Connover went to work that morning and was in the process of gathering Dean Kirkland’s expense reports from the accounting office when a manager stopped her. She placed some of Dean Kirkland’s personal property in a box along with those expense reports she had collected already and took the box home. Within a few days or a week, Connover gave the box containing the expense reports to Dean Kirkland.

In late September or early October 2000, the Receiver for CCI spoke to Connie Kristensen, Portfolio Manager for the Receiver, about locating Dean Kirkland’s original expense reports for the year 2000. Kristensen telephoned Dean Kirkland, and he told her that he did not have these reports. After Kristensen spoke with Connover, however, Kristensen called Dean Kirkland back, told him that Conn-over said the reports were in the box, and asked him to look for them again. Dean Kirkland called Kristensen back, said he found the reports in the box, and arranged to return them to CCI. After the reports were returned, Kristensen telephoned Dean Kirkland again and told him he was “square” with the Receiver.

Although the Court finds Dean Kirkland returned his original expense records for the year 2000 to the Receiver in late September or early October 2000, the Court, nonetheless, also finds beyond a reasonable doubt that Dean Kirkland lied to federal agents on October 20, 2000, when he said he “had turned over any records” either to CCI or to Connover because, in fact, Dean Kirkland had burned and destroyed other CCI “office documents” shortly after September 20, 2000.

Finally, to meet its burden as to Element 3b of the obstruction-of-justice count, the government also must prove beyond a reasonable doubt that Dean Kirkland intended to obstruct the Grand Jury investigation when he lied to federal agents on October 20, 2000.

Having considered all of the evidence on this issue, the Court finds the following additional facts beyond a reasonable doubt:

When Dean Kirkland lied to federal agents on October 20, 2000, he had just been served with the Grand Jury Subpoena that required him to produce “any and all records in any form relating to Capital Consultants and/or related parties, entities, or clients.” Dean Kirkland knew at the time that the Subpoena called for him to produce such documents to the Grand Jury. Dean Kirkland also knew he did not have any obligation to make any statements and the agents were not seeking to interview him or to search the premises. Nonetheless, Dean Kirkland knowingly volunteered the false statement that he “had turned over any records” he had to CCI or to Connover. In addition, Dean Kirkland invited the agents to his office and suggested they search for that which he knew was already “gone.” While in his home office, Dean Kirkland drew the agents’ attention to the obviously harmless brochures, emphasized he used these as “fire starters” for his wood stove, and asked whether these might be responsive to the Subpoena as if he had an earnest desire to cooperate.

The Court, however, finds Dean Kirkland knowingly engaged in a charade for the purpose of appearing to cooperate with the agents and, by extension, with the Grand Jury when, in fact, he had already lied about returning “any” CCI office documents. It follows, therefore, that Dean Kirkland intended to misdirect the agents and the Grand Jury. Thus, the Court finds beyond a reasonable doubt that the government proved Dean Kirkland “acted or endeavored to act corruptly with the intent to obstruct or to impede the grand jury proceeding” by lying to federal agents when he falsely claimed on October 20, 2000, that he previously gave all.CCI office documents in his possession to CCI or Connover.

IV. Verdict on Obstruction-of-Justice Count.

Having weighed and evaluated all of the evidence, the Court finds the government has proven beyond a reasonable doubt all of the elements of obstruction of justice. The Court, therefore, finds beyond a reasonable doubt that Dean Kirkland is GUILTY of obstruction of justice for lying to federal agents on October 20, 2000, as charged in Count 55.

GRATUITIES: COUNTS 1-41 AGAINST ALL DEFENDANTS

I. The Law

18 U.S.C. § 1954 provides:

Whoever being -

(1) an administrator, officer, trustee, custodian, counsel, agent, or employee of any employee welfare benefit plan or employee pension benefit plan; or

* * * * *

(3) an officer, counsel, agent, or employee of an employee organization any of whose members are covered by such plan;

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receives or agrees to receive or solicits any fee, kickback, commission, gift, loan, money, or thing of value because of ... any of the actions, decisions, or other duties relating to any question or matter concerning such plan or any person who directly or indirectly gives or offers, or promises to give or offer, any fee, kickback, commission, gift, loan, money, or thing of value prohibited by this section, shall be fined under this title or imprisoned not more than three years, or both: Provided, That this section shall not prohibit the payment to or acceptance by any person of bona fide salary, compensation, or other payments made for goods or facilities actually furnished or for services actually performed in the regular course of his duties as such person, administrator, officer, trustee, custodian, counsel, agent, or employee of such plan, employer, employee organization, or organization providing benefit plan services to such plan.

(Emphasis in original.)

To establish a violation of 18 U.S.C. § 1954, the government must prove beyond a reasonable doubt that a motivational link or nexus exists between a thing of value conferred on a trustee and a specific action, decision, or duty of the trustee who receives the thing of value. United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 414, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999)(the government “must prove a link between a thing of value conferred upon a public official and a specific ‘official act’ for or because of which it was given” to establish a violation of 18 U.S.C. § 201(c)(1)(A)).

The government, however, need not prove a defendant knew the giving of a gratuity or the receiving of a gratuity was prohibited by law. The government must prove only that a defendant gave or received a gratuity “because of’ actions or decisions of the trustee-recipient. United States v. Soares, 998 F.2d 671 (9th Cir.1993).

II. Gratuities: Counts 1-21 Against Dean Kirkland

As to each of the remaining gratuities counts charged against Dean Kirkland in the Second Superseding Indictment, the government must prove beyond a reasonable doubt the following elements:

1. As alleged in each count, Dean Kirkland gave a thing of value on or about the dates alleged to one or more persons who were trustees of one or more plans subject to 18 U.S.C. § 1954;

2. The trustee-recipient, in fact, received the thing of value as alleged in each count; and

3. Dean Kirkland gave each thing of value because of one or more of the trustee-recipient’s specific actions or decisions.

A. Elements 1 and 2.

In general, Dean Kirkland concedes Elements 1 and 2 for each of the remaining gratuities counts against him. Thus, the Court need not summarize the overwhelming and essentially uncontra-dicted evidence that establishes Dean Kirkland gave, and each of the identified trustees received, the various gratuities as alleged. Although CCI ultimately funded each of the remaining gratuities charged against Dean Kirkland, it is undisputed that Dean Kirkland personally decided to give each of them and personally determined the trustees who would receive them. The Court, therefore, finds Dean Kirkland “gave” each gratuity as a principal and not as an aider or abettor of criminal conduct by CCI pursuant to 18 U.S.C. § 2. In any event, the Court has considered all of the evidence and finds the following facts pertinent to Elements 1 and 2 beyond a reasonable doubt:

Count 1: In September 1997, Dean Kirkland gave to Robert Legino a hunting trip in Alaska and related expenses. When Robert Legino received these things of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 2: In November 1997, Dean Kirkland gave to Robert Legino a hunting trip to Oxbow Ranch (Oregon) and related expenses. When Robert Legino received these things of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 3: In February and October 1998, Dean Kirkland caused to be paid on behalf of Gary Kirkland legal fees and fines that arose from the 1997 Oxbow Ranch hunting trip. When these things of value were paid on Gary Kirkland’s behalf, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 4: In April 1998, Dean Kirkland gave to John Lontine Denver Bronco season tickets. When John Lontine received these things of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 5: In May 1998, Dean Kirkland gave to Robert Legino a Sako rifle. When Robert Legino received this thing of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 7: In July 1998, Dean Kirkland gave to John Lontine a fishing trip in Alaska. When John Lontine received this thing of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 8: In August 1998, Dean Kirkland gave to Robert Legino a hunting trip in Africa and related expenses. When Robert Legino received these things of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 9: In September 1998, Dean Kirkland gave to Dennis Talbott, a trustee of Local 33 based in Akron, Ohio, a hunting trip to Clover Creek Ranch in Oregon. When Dennis Talbott received this thing of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 10: In November 1998, Dean Kirkland gave to Robert Legino; Blaine Newman, an Eighth District trustee; and Dennis Talbott a hunting trip to Hubbard’s Yellowstone Lodge in Montana and related expenses. When Robert Legino, Blaine Newman, and Dennis Tal-bott each received these things of value, each was a trustee of one or more plans ■ described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 11: In March 1999, Dean Kirkland gave to John Lontine Denver Bronco season tickets. When John Lontine received these things of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 12: In July 1999, Dean Kirkland gave to Gary Kirkland a fishing trip to Tsuniah Lake Lodge in British Columbia, Canada, and related expenses. When Gary Kirkland received these things of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 13: In September 1999, Dean Kirkland gave to Gary Kirkland a hunting trip in Montana and related expenses. When Gary Kirkland received these things of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 14: In November 1999, Dean Kirkland gave to Robert Legino, Gary Kirkland, Robert Mayhew, and Dennis Talbott a hunting trip to The Lodge at Chama in New Mexico and related expenses. When Robert Legino, Gary Kirkland, Robert Mayhew, and Dennis Tal-bott each received these things of value, each was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 15: In December 1999, Dean Kirkland gave to John Lontine Colorado Rockies tickets. When John Lon-tine received these things of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 16: In December 1999, Dean Kirkland gave to Gary Kirkland a hunting trip in Mexico and related expenses. When Gary Kirkland received these things of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 17: In January 2000, Dean Kirkland gave to Robert Legino a Weatherby rifle. When Robert Legino received this thing of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 18: In January 2000, Dean KirMand gave to Robert Mayhew a Weather-by rifle. When Robert Mayhew received this thing of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 19: In March 2000, Dean Kirkland gave to Robert Legino and Gary Kirkland a hunting trip in Argentina and related expenses. When Robert Legino and Gary Kirkland each received theses things of value, each was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 20: In May 2000, Dean Kirkland gave to Gary Kirkland a fishing trip in Alaska and related expenses. When Gary Kirkland received this thing of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Count 21: In September 2000, Dean Kirkland gave to Gary Kirkland a hunting trip in Alaska and related expenses. When Gary Krkland received this thing of value, he was a trustee of one or more plans described in 18 U.S.C. § 1954 as alleged in the Second Superseding Indictment.

Having considered all of the evidence, the Court finds beyond a reasonable doubt that the government has proved Elements 1 and 2 of each of the remaining gratuities counts against Dean Krkland.

B. Element 3: “Because of’ a Trustee’s Actions or Decisions.

1. Definition.

As noted, for each § 1954 count against Dean Krkland, the government also must prove beyond a reasonable doubt that Dean Kirkland gave each thing of value “because of’ one or more of the trustee-recipient’s actions or decisions “relating to any question or matter” concerning the trustee’s particular plans. In particular, to comply with Sun-Diamond, the government must prove a motivational link between the thing of value that Dean Kirkland gave to a trustee and the trustee’s specific action or decision “for or because of which it was given.” Under Sun-Diamond, it is not enough if Dean Kirkland was motivated merely by a trustee’s general capacity to decide matters that affected Dean Kirkland’s business interests or if Dean Kirkland was seeking merely to build “a reservoir of goodwill.” See 119 S.Ct. at 1406. Under Sun-Diamond, it is enough, however, if the government proves beyond a reasonable doubt that Dean Kirkland gave the thing of value “because of’ a trustee’s specific actions or decisions that Dean Kirkland anticipated or “because of’ a trustee’s specific past actions or decisions that Dean Kirkland intended to reward. See id.

The Court, however, has been unable to find any authority that defines the meaning of the words “because of’ in the context of 18 U.S.C. § 1954, including the statute itself. When a statute does not define words contained within its text, courts will give the words their ordinary meaning. Bailey v. United States, 516 U.S. 137, 144-45, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (citations omitted). The ordinary meaning of words can be determined from dictionaries. United States v. Mohrbacher, 182 F.3d 1041, 1048 (9th Cir.1999) (citing Muscarello v. United States, 524 U.S. 125, 128-31, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998)). In Merriam-Webster’s Collegiate Dictionary 108 (11th ed.2003), “because of’ is defined as “by reason of’ or “on account of.”

Applying these ordinary meanings to the context of § 1954, the Court rejects Defendants’ collective arguments that the Court should apply a “but for” causation standard or at least a standard that would require the government to prove that a trustee’s actions or decisions were “the primary factor” in the giver’s motivation to give or the recipient’s motivation to receive the thing of value. Similarly, the Court rejects the government’s argument that it need only prove a trustee’s actions or decisions were “a” motivational factor, however slight, in the giver’s motivation to give or the trustee-recipient’s motivation to accept the thing of value. The statutory context does not suggest Congress intended either of these restrictive interpretations. Giving the words “because of’ their ordinary meaning in the context of the gratuities counts against Dean Kirkland, and in light of Sum-Diamond, the Court concludes the government must prove beyond a reasonable doubt as to each count that a substantial factor in Dean Kirkland’s motivation to give the thing of value was the trustee’s specific past or anticipated actions or decisions. A “substantial factor” is an important or material factor and not one that is insignificant. Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1112, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991). Thus, the government need not prove this was the only or the primary factor in Dean Kirkland’s motivation to give the thing of value.

2. General Findings.

The parties offered considerable evidence concerning Dean Kirkland’s state of mind when he gave hunting and fishing trips and various other things of value to Gary Kirkland, Robert Legino, and/or other client trustees. Some of the evidence reflects Dean Kirkland’s own words on the subject. Other evidence suggests Dean Kirkland’s motivations varied as to different trustee-recipients and changed over time as his own income and certain trust investments with CCI grew significantly and as the trips became more lavish and frequent.

Having considered all of the evidence pertinent to Element 3, and after carefully reviewing the record and the parties’ positions on the issue of Dean Kirkland’s motivations for giving each of the gratuities charged in the remaining counts against him, the Court finds the following additional facts beyond a reasonable doubt:

Dean Kirkland began his full-time work as a salesman for CCI at the end of his professional football career in 1995. When Dean Kirkland came to CCI, he already had life experience with union trustees because his father, Gary Kirkland, was a long-time leader in and trustee for Portland unions. Dean Kirkland also had many potentially useful relationships arising from his college football years at the University of Washington. Dean Kirkland recognized early the value of these existing relationships to his future success in sales. In fact, when Dean Kirkland was still a part-time employee at CCI, his 1992 Employment Agreement contained a noncom-pete clause that excepted these kinds of relationships from its scope.

Jeffrey Grayson became Dean Kirkland’s mentor at CCI, and Dean Kirkland learned quickly that making inroads into the “Taft-Hartley” market would require him to develop personal relationships with the trustees who made