STATE OF MARYLAND * IN THE DISTRICT COURT

V. * FOR ANNE ARUNDEL COUNTY

DENNIS FUSARO * CASE NO. D-07-CR-16-00.0.734

* * * * * * * * * * * * * *
STATE OF MAR YLAND * IN THE DISTRICT COURT

V. * FORANNEARUNDELCOUNTY

STEPHEN WATERS * CASE NO. D-07-CR-16-000735

* * * * * * * * * * * * * *
DECISION

In this action, the Defendants Dennis Fusaro and Stephen Waters are charged by way of

criminal information with two separate offenses. In Count I, the Defendants are charged with

violation of Section 13-602 of the Election Law Article by causing the publication and

distribution of campaign material that did not comply with the disclosure requirements of

Section 13-401 of the Election Law Article. In Count II of the charging document, the

Defendants are charged with conspiracy to violate Section 13-602 ofthe Election Law Article in

regard to the publication and distribution of the campaign material not complying with the

disclosure requirements of Section 13-401 of the Election Law Article.

In Buckley v. V aleo, 424 U.S. 1 (1976) the Supreme Court considered various challenges

to the Federal Election Campaign Act of 1971 (FECA) as amended in 1974 containing

provisions for política! contribution limits to candidates for federal office, expenditure limits by

individuals or groups relativé to clearly identified candidates, and disclosure and disclaimer

provisions for political contributions and expenditures. The constitutional challenges to FECA

in Buckley included alleged violations of First Amendment rights to speech and association. In
1
addressing the First Amendment challenges to the política! contribution and expenditure limits
1

under FECA, the Supreme Court applied a strict scrutiny test, however in regard to the disclosure

and disclaimer provisions contained in FECA, the Supreme Court applied an "exacting scrutiny"

test which requires a "substantial relation" between the disclosure requirement an,d a

"sufficiently important" governmental interest. Buckley v. Valeo, supra at 64, 66. The Court

noted that disclaimer and disclosure requirements may burden the ability to speak, however they

"impose no sealing on campaign related activities." Buckley v. V aleo, supra at 64. In Buckley

the Supreme Court explained that the disclosure requirements were justified based upon the

substantial government interest in (1) providing the electorate with information asto the source

of campaign funding and how it is spent by candidates; (2) deterring actual corruption arid

avoiding the appearance of corruption by exposing large contribution and expenditures to the
1 •

light ofpublicity; and (3) providing record keeping and reporting asan essential means of

gathering data necessary to detect violations of contribution limits.

In McConnell v. Federal Election Commission 540 U.S. 93 (2003), the Court considered

First Amendment challenges to the Bipartisan Campaign Reform Act of 2002 (BCRA) including

the disclosure and disclaimer provisions under the BCRA. In McConnell, supra at 201 the Court

held that disclaimer and disclosure requirements "do not prevent anyone from speaking" and

applying the exacting scrutiny test established under Buckley, the Court upheld the BCRA

disclosure and disclaimer provisions against First Amendment challenges. However, the Court

citing Bucklev acknowledged that as applied challenges to the disclosure and disclaimer

provisions could be made upon a showing of a reasonable probability that the compelled

disclosure of a party's contributor's names would subject them to threats, harassment, or reprisal

2
from either government officials or prívate parties. Bucklev, supra at 74; McConnell, supra at

198-199.

In Federal Election Commission v. Wisconsin Right to Life, Inc.; 551 U.S. 449 (2007)

(WRTL), the Supreme Court considered the application of campaign expenditure limits imposed

by the Bipartisan Campaign Reform Act of2002. The Court noted that in Buckley v. V aleo,

supra at 42, independent expenditure limits were held constitutional under the First Amendment

as those limits covered "express advocacy of the election or defeat of a clearly identified

candidate" by the use of "magic words" such as "vote for," "elect," "support," "cast your ballot

for," "Smith for Congress," "vote against," "defeat," and "reject." WRTL supra at 453. The

Court in WRTL, supra at 469-470, also upheld the constitutionality under the First Amendment

of campaign expenditure limits as they covered "the functional equivalent of express advocacy"

which the Court defÍned as speech "susceptible of no reasonable interpretation other than as an

appeal to vote for or against a specific candidate."

In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the Supreme

Court addressed severa! issues under the BCRA, and once again the Court considered First

Amendment challenges to the disclosure requirements under the federal statute. Reaffirming the

rulings in Buckley v. V aleo, supra, McConnell v. FEC; supra, and WRTL, supra, in regard to

disclosure requirements generally, the Supreme Court upheld the constitutionality of campaign

disclosure requirements with regard to express advocacy, the functional equivalent of express

.advocacy, and also independent expenditures that advocate the election or defeat of a candidate.

Fifteen years prior to the decision in Citizens United, supra, the Supreme Court in

Mclntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) addressed the right ofindividuals

under the First Amendment to engage in anonymous speech. In Mclntyre, supra, the Ohio
3
statute imposed disclosure requirements not only to expenditures expressly advocating the

election or defeat of a candidate but also all speech promoting the adoption or defeat of any

issue, and the Supreme Court held that the broadly written Ohio statute prohibiting the

distribution of anonymous campaign material violated First Arnendment rights. Mcintyre, supra,

at 357. In Bailey v. Maine Commission ofGovernmental Ethics and Election Practices, 900 F.

Supp. 2d 75, at 83-86 (2012), the District Court diséussed what it described as "the tension

between Citizens United and Mcintvre."

In upholding Maine's statutory disclosure requirements against First Arnendment

challenges based in part upon Mclntyre, supra, the District Court distinguished Bailey from

Mclntyre, in severa! respects. Bailey, supra, at 86. First, the District Court noted that the Maine

disclosure statute was a narrowly drawn law dealing with express advocacy of candidates rather

than speech related to ballot initiatives or issues. Second, Bailey was expressly advocating the

defeat of a gubematorial candidate shortly prior to the election. Also, the District Court

emphasized that Bailey was an experienced política! operative connected with an opposing

campaign in the election process whereas Mrs. Mclntyre was a prívate citizen expressing her

personal views on a ballot issue. In addition, Mrs. Mclntyre had acted truly independently while

Bailey was closely associated with an opposing candidate and campaign in the Maine

gubematorial elections. The right to speak anonymously as addressed in Mclntyre v. Ohio was

addressed in an opinion ofthe Maryland Attomey General. 80 Op. Att'y Gen. 110 (May 16,

1995). In reviewing the effect ofMcintyre, supra, upon a former version ofthe Maryland

Disclaimer Law, the Attomey General opined that certain sections of the former statute were

unconstitutional and could not be enforced against individuals independently producing
,
campaign material, however, the Attomey General also opined that the provisions ofthe former
4
statute could be enforced against candidates, campaign treasurers, political committees, and

others acting in coordination with such cam~aigns. Opinions ofthe Attomey General are

entitled to careful consideration, however such opinions are not binding upon the Court.

Montgomery County v. Atlantic Guns. Inc., 302 Md. 540 (1985); Scott v. Clerk ofCircuit Court

for Frederick County, 112 Md. App. 234 (1996). In considering the referenced opinion ofthe

Attomey General in this case, the Court notes that the opinion was issued prior to and without

the benefit of consideration ofthe reasoning and rules stated in McConnell, supra; WRTL,

1
supra; Citizens United v. FEC, supra; and Bailey v. Maine Commission, supra.

In this case, an issue is raised asto whether the Telephone Consumer Protection Act

(TCPA)
. preempts Maryland's Election . Law Statute. The Maryland Telephone Consumer

Protection Act ("MTCPA"), MD Ann. Code, Commercial Law Article, §§ 14-3201- 14-3202

prohibits a person from violating the TCPA, 47 U.S.C. §277, as implemented by the ·Federal

Communications Commission in the Restrictions on Telemarketing and TelephOne Solicitations

Rule (47 C.F.R. Part 64, Subpart L). The TCPA expressly declines preemption ofstate laws. 47

U.S.C. §227(F)(1)(stating "State law not preempted").

The MTCP A was enacted merely to enable a prívate right of action under the TCP A.

Lynn v. Monarch Recovery Management. Inc., 953 F.Supp.2d 612 (D. Maryland, 2013);

Worsham v. Erlich, 181 Md. App. 711 (2008). In Erlich, supra, a civil action filed by the

1 The Court notes that under Section 1-101 (k) (1) (ii), the definition of
campaign material includes material that relate to "the approval or rejection
of a question". In light of the rules governing disclosure requirements
pertaining to ballot issues, referenda, or other electoral issues, the
constitutionality of Maryland's disclosure laws to such material is possibly
subject to question, however, in light of principles concerning severability
of statutes, that issue is not presented in the instant case. Section 1-210,
General Provision Article of the Annotated Code of Maryland; Jackson v.
Duckman, 422 Md. 357 (2011); Davis v. State, 294 Md. 370 (1982).
5
recipients of unsolicited prerecorded poli ti cal campaigned telephone calls, the Court of Special

Appeals held the MTCP A and TCP A provided no prívate right of action for deficient,

improperly identified calls, and held the TCP A prohibits states from creating more restrictive

intrastate identification standards. Unlike Erlich, supra, the instant case is a criminal action

against Defendants involving interstate robo- calls, not a civil action filed by a recipient of an

unsolicited robo-call.

In Patriotic Veterans, Inc. v. Indiana, 736 F.3d 528 (S.D.N.Y., 2005), a non-profit

seeking to communicate political messages relating to particular candidates or issues of interest

to Indiana-residing veterans sought to challenge the Indiana Automated Dialing Machine statute

(IADM) vía preemption by the TCP A. The Court of Appeals for the Seventh Circuit held that

the TCPA did not preempt the IADM noting that the TCPA's non-preemption clause "is the first

and best evidence that the federal government did not intend to occupy the entire field of robo-

callregulation." The court further noted, arguendo, even ifthe TCPA was inescapably

ambiguous and "it was appropriate to tum to legislative history to construe the intent of a statute,

one would also have had to consider the fact that earlier, un-enacted drafts of the TCP A would

have expressly preempted 'any provision of State law conceming interstate communications that

are inconsistent with the interstate communications provisions' ... [but] We cannot assume that

Congress intended to enact statutory language that it has earlier discarded in favor of other

language." Patriotic Veterans, Inc. v. Indiana at 1053, citing 137 Cong. Rec. S. 16200, 16202

(1991) and ChickasawNation v. U.S. 534 U.S. 84,93 (2001).

Other courts have disfavored preemption. See Van Bergen v. State ofMinn, 59 F.3d

1542, 1547-48 (8th Cir., 1995)(holding TCPA's savings clause does not preempt Iess restrictive

state Iaws); Sussman v. I.C. System, Inc., 928 F. Supp.2d 784 (S.D.N.Y., 2013)(denying motion
6
to dismiss on preemption grounds "having found that Congress did not expressly or impliedly

preempt state law"); State ex rel. Stenejam v. FreeEats.com, Inc., 712 N.W.2d 828 (2006)("We

conclude that Congress has clearly and unambiguously expressed its intent that the TCPA does

not preempt application of a state statute prohibiting interstate telemarketing calls which use

automatic dialing equipment or artificial or prerecorded voice messages").

In this case, Maryland's disclosure law in Section 13-401 ofthe Election Law Article has

been challenged as impermissib1y broad and vague in 1ight ofthe protections afforded by the

First Amendment speech rights and Fifth Amendment due process rights. In Center For

Individual Freedom v. Madigan, 697 F. 3d 464 (2012 7th Cir.), the court analyzed challenges to

the Illinois campaign disclosure law under the overbreadth doctrine and the void-for-vagueness

doctrine. Noting that the Supreme Court had upheld against vagueness and overbreadth

challenges provisions of FECA, discussed in Buckley, supra, McConnell, supra, WRTL, supra,

and Citizens United, supra, the Seventh Circuit rejected overbreadth and vagueness challenges to

similar provisions in the Illinois disclosure law. In Buckley, supra at 39-45, the Supreme Court

uphe1d the disclosure provisions of FECA "Relative to a Clearly Identified Candidate" by

narrowly construing that term to apply to communications that "in express terms advocate the

election or defeat of a clearly identified candidate for (federal) office". The provisions of

Section 13-401 ofthe Election Law Article apply to "Campaign Material" as defined in section

1-101(k) which must be interpreted with the definition of"Candidate" in Section 1-101(1) ofthe

Election Law Article. These provisions of the Election Law Article, more specific than the

provision of FECA considered in Buckley, supra, clearly apply to material that advocates the

election or defeat of a candidate for office.

7
As to whether robo-calls are included within the scope of the definition of "Campaign

Material" under Section 1-1 O1(k) of the Election Law Article, the statute must be reviewed to

effectuate the 1egislature's intent, and ifthe words ofthe statute are clear and unambiguous,

according to the commonly understood meaning of those words, the court must apply that

meaning. Nesbit v. Geico, 382 Md. 65, 854 A.2d 879 (2004); Chesapeake and Potomac

Telephone Co. ofMaryland v. Director ofFinance for Mayor and City Council ofBaltimore, 343

Md. 567,683 A.2d 512 (1996). Although robo-calls are not specifically mentioned within the

statute, this form of communication clearly falls within the scope of "Campaign Material" under

Section 1-101(k). A robo-call is material transmitted by electronic medium, a telephone, to the

ultimate recipient, or by telephone or intemet, to vendors who actually upload the material for

communication to the ultimate recipient. Section 1-101(k)(2)(i). A robo-call is an oral message

communicated for afee through a commercial service, a telephone company, an intemet service

provider, or a robo-call vendar who transmits the communication to the final recipient. Section

1-101(k)(2)(ii). Further, a robo-call can begin as a script, a "text". Section"l-101(k)(l)(i).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The court makes the following findings of fact. Michael Peroutka and Patirck Armstrong

were opponents for election to the 5th Councilmanic District seat on the Anne Arundel County

Council in the 2014 Maryland Gubematorial General Election .. Early voting for the General

Election commenced on October 23, 2014 and ended on October 30, 2014. Election Day for the

General Election was November 4, 2014. The authorized campaign committee for Mr. Peroutka

was registered with the State Board ofElections as Friends ofMichael Anthony Peroutka, and

the campaign chairman registered with the State Board of Elections was Michael Anthony

Peroutka and the registered campaign treasurer was Thomas Pavlinic.
8
A. The Robo-Calls

On October 31, 2014 approximately 5000 automated telephone calls ("robo-calls") were

made to households or residents of Anne Arundel County, Maryland. A recording of the

identical oral communication contained in the robo-calls was a:dmitted into evidence as Exhibit 1

for the State. Thé message ofthe robo-call refers specifically to the impending election for

County Council in Anne Arundel County, and Patrick Armstrong is identified in the robo-call as

a candidate for that public office. The message, in pertinent part, calls upon the recipient of the

robo-call to contact the candidate Armstrong and "thank him for his bravery in coming out of the

closet. .. and supporting the rights oftransgenders"; tell (Armstrong) "to continue to stand loud

and próud in support oftransgenders' equal rights", "thank him (Armstrong) for supporting the

bathroom bill". The robo-call states that "transgenders can now openly and freely go into any

bathroom oftheir choice based on their confused gender identity". The robo-call also refers toan

"opponent", and logically this comment refers to Mr. Armstrong's opponent in the referenced

election, MÍ'. Peroutka. The robo-call states that the opponent (Peroutka) has "argued that

children could be at risk by sexual predators with this new law". The robo-call message

concludes by stating "Paid for and authorized by Marylander's for Transgenders".

Taken at face value, the content ofthe robo-call could be perceived as complimentary

and supportive ofMr. Armstrong's positions and campaign such that the recipient ofthe robo-

call should thank Mr. Armstrong in the upcoming election. However, several witnesses at trial

testified that they perceived the robo-call as an attack upon Mr. Armstrong and his candidacy and

as a criticism ofMr. Amstrong's lifestyle. For the purposes ofthe present case, the issue for the

.court is whether the content of the robo-call is express advocacy, or the functional equivalent of

express advocacy, or issue advocacy. Arguably the robo-call is express advocacy even though it
9
lacks the "magic words" referenced in WRTL such as "vote for" or "vote against", but the robo-

call is beyond question "the functional equivalent of express advocacy" since it is "susceptible of

no reasonable interpretation other than asan appeal to vote for or against a specific candidate".

The robo-call is clearly about the impending election for public office and the purported

positions ofMr. Armstrong and his opponent, Mr. Peroutka. The robo-call identifies the specific

impending election for a seat on the Anne Arundel County Council. By the date on which the

calls were made, early voting had already taken place and the general election was days away.

Whether the robo-call is perceived as supportive of Mr. Armstrong and his candidacy; or as

criticism and attack upon Mr. Arrnstrong and his candidacy, either altemative reriders the robo-

call as the "functional equivalent of express advocacy" since it is either an appeal to vote for or

against Mr. Armstrong. It should also be noted that the comment concerning Mr. Peroutka's

position of protecting children from sexual predators could be perceived by sorne recipients of
1
the robo-calls asan appeal to vote for Mr. Peroutka, again the 'functional equivalent of express

advocacy'. Thus, this case is controlled by the line of cases upholding the constitutionality of

disclosure laws, Buckley, supra, McConnell, supra, WRTL,supra, Citizens United, supra, and

Bailev v. Maine, supra rather than Mclntyre v. Ohio, supra. The publishers or distributors ofthe

robo-calls in the circumstance ofthis case possessed no right to speak anonymously.

The robo-call, according to its concluding line was "Paid for and authorized by

Marylanders' for Transgenders". At trial, three recipients ofthe robo-calls testified asto their

lack ofknowledge about the groUp identified in the robo-callas "Marylanders' for

Transgenders" Testimony ofthe three robo-cal! recipients' efforts to identify "Marylanders' for

Transgenders" was that intemet searches revealed no intemet site or reference to the group. The

robo-call in this case was not irícompliance with Section 1-402(b) ofthe Election Law Article in
10
that the disclosure and disclaimer required by the statute were omitted. The name ofthe payor or

any organization affiliated with the payor; and the name and title of the treasurer or president of

the payor were omitted frorn the robo-call. Finally, the disclaimer message for any campaign

material not authorized by the candidate was also omitted from the message in the robo-call.

B Defendant Stephen Waters

Aaron Evans, a representative oflmpact Strategies, L.L.C. testified asto the involvement ofthe

Defendant Stephen Walters in the distribution ofthe robo-calls. Impact Strategies, L.L.C.

(Impact) is in the business of causing the distribution of automated telephone calls or robo-calls

for a fee at the request of its customers. The Defendant Waters placed an order for a robo-call

with Irnpact, and the company fulfilled Mr.Waters' order. Mr. Waters placed the order either by

telephone on on-line. Mr. Waters provided the necessary information to distribute the robo-

call including the scheduled time and date for the robo-call, the audio recorded message for the

robo-cal!, the lists oftelephone numbers to which the robo-calls would be directed, a caller

identification number to be associated with the robo-call. The robo-call in this case, state's

exhibit 1 was the audio recording and robo-call that was Mr. Waters' arder with Impact. After

receipt ofthe arder from Mr. Waters, Impact utilized the services of Stratics Networks,

Inc.(Stratics), a company located in Ontario, Canada. Stratics is a technology firm that provides

a computerized system for the making of robo-calls, and in this case Impact' s employees loaded

the robo-call ordered by Mr. Waters, utilizing the information provided by Mr. Waters, into

Stratics robo-call system including the schedule for the distribution of the robo-calls. Mr. Waters

paid Impact by credit card for the distribution of the robo-calls in this case.

11
C. Defendant Dennis Fusaro

Evidence in the form of witness testimony and various documents was admitted at tri al asto

the involvement of the Defendant, Dennis Fusa ro in the distribution of the robo-ca lis in this case. During

the course of the trial, counsel have commented that the evidence offered against Mr. Fusa ro is highly

circumstantial. This comment is not precisely accurate; instead a review of the evidence offered asto

Mr. Fusaro's involvement in the robo-calls is a mixture of both direct and circumstantial evidence. A

review of the chain of events leading to the distribution of the robo-ca lis on October 31, 2014, and

certain events thereafter is necessary to understand Mr. Fusaro's involvement in the distribution of the

robo-ca lis.

Dennis Fusaro operating under his business name Grass Roots Solutions, lnc. was hired by

Candidate Michael Peroutka's campaign in July of 2014. Mr. Fusaro was an experienced campaign

consultant and political operative who had worked in the past in other political campaigns. Mr. Fusaro

was paid a base monthly fee of $4,000 plus expenses by the Peroutka campaign. Mr. Fusa ro ran the day

to day operations of the Peroutka campaign. Mr. Fusaro's responsibilities and duties with the campaign

were many including helping to prepare for campaign events, preparing copy and campaign

advertisements for mailing.

Mr. Fusa ro arranged and managed relationships with vendors for the campaign including the

robo-call vender. Mr. Fusa ro wrote the copy or script for the Petrouka campaign's robo-ca lis. Mr.

Fusaro's responsibility included submission of scripts for robo-ca listo Candidate Peroutka who would

record the robo-calls over the phone with the robo-call vender. Mr. Fusa ro managed the entire robo-

cal! component ofthe Peroutka campaign. Mr. Fusaro arranged for use of robo-calls in the Peroutka

campaign including m id- October of 2014 and particularly toward the end of the election season. Mr.

Fusaro and Mr. Peroutka considered the use of information regarding the opposing Candidate

12
Armstrong's sexual orientation and lifestyle asan issue to damage Armstrong's campaign and candidacy.

Mr. Fusaro suggested the distribution of a robo-call known as "big boy pants" to make an issue of Mr.

Armstrong's sexual orientation and lifestyle in the election. Mr. Fusaro discussed the proposed sexual

orientation issue with Mr. Peroutka who decided against the use of Mr. Armstrong's sexual orientation

asan issue in the campaign. Mr. Fusaro was fully aware that the Candidate Peroutka had refused to

authorize the use of Mr. Armstrong's sexual orientation in the form of the "big boy pants" robo-call or

any other similar robo-ca JI or in any other manner in the election.

Mr. Fusaro had contact in October 2014 with Defendant Stephen Waters who was an outsider to

the Peroutka campaign. Mr. Fusa ro and Mr. Waters had known each other from political activities in the

past. Mr. Fusaro and Mr. Waters exchanged telephone calls and text messages on severa! occasions in

October of 2014, and particularly on October 26, 30, and 31 of 2014. On October 26, 2014, Mr. Fusa ro

traveled south by auto from his home in the Front Royal area of Virginia to the Fredericksburg area. On

the same date Mr. Waters by auto travelled north from the Richmond area of Virginia to the

Fredericksburg area. Mr. Fusa ro in company of Mr. Waters arrived at the parking lot of the Wai-Mart

store in Fredericksburg in the same automobile. Mr. Fusaro and Mr. Waters had met at sorne other

location and rode together in the same auto to the Wai-Mart store. Mr. Fusaro with Mr. Waters exited

the vehicle and entered the Wai-Mart store together. Mr. Fusaro separated from Mr. Waters after
a

entering the store and proceeded toa cashiers counter. Mr. Fusaro purchased a 76 cent candy bar for

purchase with a debit card, and he requested and received $100 in the form of S twenty dollar bilis as

cash back at 3:49PM. Mr. Fusaro and Mr. Waters approximately seven minutes later appeared at

another cashier's counter where Mr. Waters presented a cell phone to the cashier and requested

activation of the phone giving to the cashier S twenty dollar bilis. Mr. Fusa ro was present during the

entire purchase of the cell phone and the activation of the phone; and during the activation process, Mr.

Waters stood back while Mr. Fusaro actively interacted with the cashier, Ms. Mills-Davis,·in activating

13
the phone and testing its use. Mr. Fusa ro was also the final recipient of the change from the purchase
. ., .

and the receipt for the phone when Mr. Waters delivered the change and the receipt to Mr. Fusa ro after

Mr. Waters had received the same from the cashier. Mr. Fusaro in reality purchased the cell phone

from the cashier who at trial testified that she gave the phone to Mr. Fusa ro on the belief that Fusa ro

and Waters were purchasing the cell phone together. Mr. Fusaro then placed the cell phone into Mr.

Waters shopping bag who had purchased other items using his own funds. The cell phone purchased by

Mr. Fusaro and Mr. Waters on October 26 was the same phone utilized to cause the distribution ofthe

robo-calls in Anne Arundel County on October 31, 2014. Mr. Fusa ro accompanied by Mr. Waters, after

the purchase of the cell phone departed the Wai-Mart store leaving together in the same auto.

Mr. Fusa ro, from his work as the manager of the robo-call component of the Peroutka

campaign, had access to the telephone lists of Anne Arundel County voters in District S, as well as the

information pertaining to Mr. Armstrong's sexual orientation. Mr. Waters using the cell phone

purchased with Mr. Fusaro at the Wai-Mart on October 26 conveyed this information to lmpact
1

Strategies and to Stratics Networks and finally to Anne Aru.ndel County voters on October 31, 2014.

After the distribution of the robo-ca lis was m ade known, Mr. Peroutka questioned the staff of

his campaign about the origin of the robo-ca lis. In an e-mail to Mr. Peroutka, Mr. Fusa ro responded

"Again, your campaign did not make the call. That's a fact." Since Mr. Waters was notan official

member of the Peroutka campaign, Mr. Fusaro's representation may be accurate in that sense.

However, in his reply, Mr. Fusaro withheld from Mr. Peroutka the information concerning Mr. Waters

and his activities, the circumstances of the purchase of the cell phone, and the so urce of the call

identification number for the phone.

In this case, the evidence of the Defendant Waters' guilt is overwhelming, and the state has

clearly met its burden of proof beyond a reasonable doubt that Mr. Waters is guilty of causing the

publication and distribution of campaign material in violation of Maryland's election laws.

14
Asto the Defendant Dennis Fusa ro, the state has offered at trial a mixture of both direct

evidence and circumstantial evidence in support of the charges. The Court views the evidence

presented against Mr. Fusa ro as links in a chain of events. The chain of events must be considered in

their totality. Any one link of the chain, viewed in isolation, could have an innocent explanation.

However, when all of the links of the chain of evidence are considered collectively and sequentially, the

true picture of Mr. Fusaro's involvement in the distribution of the robo-ca lisis crystal clear.

Mr. Fusa ro was manager of the robo-ca lis for the Peroutka campaign. All of the robo-ca lis

authorized by the Candidate Peroutka contained a disclosure statement pursuant to Maryland election

law. Candidate Peroutka refused to grant to Mr. Fusa ro the authority to utilize Mr. Armstrong's sexual
orientation

asan issue in the campaign. Mr. Fusaro than contracted an outsider to the campaign, Mr. Waters and

enlisted his aid without the approval or knowledge of the other members of the Peroutha campaign.

Fusaro and Waters met ata pre-arranged location and in a transaction designed to conceal their

purpose, purchased the cell phone that was used to distribute the offending robo-calls. The effortsto

conceal their activities continued even when Mr. Fusa ro was questioned by Mr. Peroutka himself about

possible involvement in the robo-call scheme. Mr. Fusaro denied any involvement by any member of

the campaign when he was aware of the role played by the outsider to the campaign.

The entire chain of events concerning Mr. Fusaro's involvement considered in its entirety

compels the finding that Mr. Fusaro orchestrated with the agreement and aid of Mr. Waters the

distribution of the robo-ca lis in violation of Maryland law.

The state has proven in this case beyond a reasonable doubt the guilt of both defendants asto

all charges.

15
i/4-- . .
Thisd_dayof ~~ ,2017.

¿/
. McKenna, Jr..
· dge ·

ce:
Thomas McDonough, Esquire, Attomey for Plaintiff
John Garzi, Esquire, Attomey for Defendant
Mandeep Chhabra, Esquire, Attomey for Defendant
Graven Craig, Esquire, Attomey for Defendant
Christopher l. Kachouroff, Esquire, Attomey for Defendant

/

16