United States v. Singh

• Decision Date: 16 May 2019
• Docket Number: No. 17-50387,No. 17-50337,17-50337
• Citation: 924 F.3d 1030
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ravneet SINGH, aka Ravi Singh, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jose Susumo Azano Matsura, aka Mr. A, aka Mr. Lambo, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

924 F.3d 1030

UNITED STATES of America, Plaintiff-Appellee,
v.
Ravneet SINGH, aka Ravi Singh, Defendant-Appellant.

United States of America, Plaintiff-Appellee,
v.
Jose Susumo Azano Matsura, aka Mr. A, aka Mr. Lambo, Defendant-Appellant.

No. 17-50337
No. 17-50387

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 13, 2019 San Francisco, California
Filed May 16, 2019

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Harold J. Krent (argued), IIT Chicago-Kent College of Law, Chicago, Illinois; Todd W. Burns, Burns & Cohan, San Diego, California; for Defendant-Appellant Ravneet Singh.

Charles M. Sevilla (argued), San Diego, California, for Defendant-Appellant Jose Susumo Azano Matsura.

Helen H. Hong (argued), Mark Pletcher, Billy Joe McLain, and Phillip L.B. Halpern, Assistant United States Attorneys; Robert S. Brewer Jr., United States Attorney; United States Attorney’s Office, San Diego, California; for Plaintiff-Appellee.

Charles H. Bell Jr. and Terry J. Martin, Bell McAndrews & Hiltachk LLP, Sacramento, California, for Amici Curiae California Campaign and Election Law Attorneys.

Before: MILAN D. SMITH, JR., PAUL J. WATFORD, and ANDREW D. HURWITZ, Circuit Judges.

M. SMITH, Circuit Judge:

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Jose Susumo Azano Matsura aspired to participate in developing San Diego and turning it into the Miami Beach of the west coast. To help achieve this goal, Azano and his co-conspirators sought to influence local politicians during the 2012 San Diego election cycle by providing campaign contributions. However, as a foreign national, Azano was prohibited by federal law from donating or contributing to American campaigns.

A jury convicted Azano and Ravneet Singh of various crimes stemming from the campaign contributions; Azano was also convicted of violating federal firearms law. Azano and Singh (together, Appellants) now appeal, raising a litany of constitutional, statutory, and procedural arguments. Although we affirm the district court in large part, we reverse their convictions on count thirty-seven (obstruction of justice in violation of 18 U.S.C. § 1519 ).

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

Azano ran a successful technology business based in Mexico City, but maintained a family home in San Diego. Although Azano’s wife and children are United States citizens, he is neither a naturalized United States citizen nor a permanent resident. Azano, a citizen of Mexico, entered the United States in January 2010 on a B1/B2 visa, which allows visitors entry for pleasure or business if the noncitizen "intends to leave the United States at the end of the temporary stay." 22 C.F.R. § 41.31(a)(1). Azano traveled weekly back and forth from San Diego to Mexico City for business purposes.

At trial, the government introduced evidence that Azano had an interest in developing San Diego, and particularly the Chula Vista waterfront area. The government introduced testimony that in order to achieve his development goals, Azano believed that he needed government cooperation, which included a relationship with the mayor of San Diego. Azano had previously formed such relationships in Mexico by making campaign contributions to candidates for various offices. Azano set about implementing a similar strategy in San Diego. With the aid of his co-conspirators, Azano sought to secure the favor of San Diego mayoral candidates who he believed would support his development plans. Azano first supported Bonnie Dumanis during the 2012 primary elections, but when she lost, he supported Bob Filner in the general election. Azano did so despite the fact that federal law prohibits "a foreign national, directly or indirectly," from making "a contribution or donation of money or other thing of value ... in connection with a Federal, State, or local election." 52 U.S.C. § 30121(a).

Azano’s funding scheme involved a number of people. Ernie Encinas, head of Azano’s security team, was a former San Diego police officer with useful political connections who helped represent Azano’s interests within the two campaign organizations. Marco Polo Cortes provided lobbying connections and helped facilitate initial meetings with the two campaign staffs. Mark Chase was a local car dealer and Azano’s "good friend," who arranged straw donors to donate to the Dumanis mayoral campaign, and later disguised Azano’s donations to Filner’s political action committee (PAC) and other entities by writing checks from his personal and business accounts. Edward Susumo Azano Hester, Azano’s son, recruited straw donors to give to the Dumanis campaign.

Singh was the CEO of ElectionMall, a media platform offering a "one-stop sho[p]

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of technology to candidates and political parties running for office." Singh first worked with Azano on a Mexican presidential campaign in 2011. This professional relationship continued into the mayoral campaigns of Dumanis and Filner. Aaron Rosheim, the former director of web strategy at ElectionMall, testified that Azano paid ElectionMall for work on the San Diego campaigns. For this work, Singh billed Azano’s Mexican companies, using the code names "Betty Boop" for Dumanis’s campaign and "Plastic Man" for Filner’s campaign. Evidence also suggested that Singh tried to conceal any paper trail of his work for Azano. An internal ElectionMall email from Singh with the subject title "OLD invoices for Mr. A" stated: "Please don’t have cynthia or anyone else send things with a code name. And then list the clients name in a [sic] email. That is stupid and dangerous for me." Additionally, in response to an email from Encinas about forming a PAC for Dumanis, Singh stated, "I am not responding to this email. Bec[au]se of the legal ram[i]fications."

II. Procedural Background

A federal grand jury returned a Third Superseding Indictment (the Indictment) charging four individuals—Azano, Singh, Cortes, and Hester—and one corporate defendant, ElectionMall, with illegally conspiring to commit campaign finance fraud in the 2012 San Diego mayoral elections. The government later dropped ElectionMall as a defendant and the four individuals were tried together. After trial, Cortes and Hester reached plea agreements and pled guilty to participating in the campaign contribution scheme. Encinas and Chase, who had been charged as coconspirators in a separate indictment, both also pled guilty to participating in the campaign contribution scheme.

Appellants were charged in count one of the Indictment with conspiracy to violate the Federal Election Campaign Act (FECA), 52 U.S.C. §§ 30109(d)(1)(A) and 30121(a)(1)(A),¹ for unlawful campaign donations by a foreign national, and conspiracy to falsify campaign records, in violation of 18 U.S.C. § 1519. Both were charged in count three with the substantive offense of making unlawful campaign donations as a foreign national. Singh was charged in counts thirty-two and thirty-seven with the substantive offense of falsifying campaign records in violation of 18 U.S.C. § 1519. Azano was similarly charged in counts five through thirty-seven with the substantive offense of falsifying campaign records. Finally, Azano was charged in count four with making a conduit contribution in connection with a federal election, in violation of 52 U.S.C. §§ 30109(d)(1)(A) and 30122, and in count thirty-nine with unlawfully possessing a firearm as an alien in violation of 18 U.S.C. § 922(g)(5)(B).

A jury found Appellants guilty on all the counts with which they were respectively charged. On October 27, 2017, the district court sentenced Azano to three years in custody and three years of supervised release, and on August 31, 2017 sentenced Singh to fifteen months in custody and three years of supervised release. Appellants timely appealed.

ANALYSIS

Appellants raise a number of claims contesting their convictions. We address each in turn.

I

Appellants first argue that 52 U.S.C. § 30121 is unconstitutional on two grounds: (1) it exceeds Congress’s jurisdiction

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to legislate concerning state and local elections, and (2) it violates foreign nationals’ First Amendment speech rights. We review the constitutionality of a statute de novo. United States v. Jones , 231 F.3d 508, 513 (9th Cir. 2000).

We first consider the genesis of § 30121. As donations and contributions have grown more important to the campaign process, so too has concern over foreign influence in American elections. In 1966, Congress amended the Foreign Agents Registration Act to prohibit foreign governments and entities from contributing to American political candidates. See Pub. L. No. 89-486, § 8, 80 Stat. 244, 248–49. Subsequently, Congress banned all foreign nationals² from making such contributions. See Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, § 101(d), 88 Stat. 1263, 1267.

Still, suspicions of foreign influence in American elections remained a pervasive concern. Following the 1996 election, the Senate Committee on Governmental Affairs investigated foreign campaign...