United States v. Singh, 051619 FED9, 17-50337

Docket Nº:17-50337, 17-50387
Opinion Judge:M. SMITH, CIRCUIT JUDGE
Party Name: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.
Attorney: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), ...
Judge Panel:Before: MILAN D. SMITH, JR., PAUL J. WATFORD, and ANDREW D. HURWITZ, Circuit Judges.
Case Date:May 16, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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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.

Nos. 17-50337, 17-50387

United States Court of Appeals, Ninth Circuit

May 16, 2019

Argued and Submitted March 13, 2019 San Francisco, California

Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding D.C. No. 3:14-cr-00388-MMA-2, 3:14-cr-00388-MMA-1

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.

SUMMARY[*]

Criminal Law

The panel reversed Jose Susumo Azano Mastura's and Ravneet Singh's convictions on count 37 for falsification of campaign records, affirmed all other convictions, vacated the sentences, and remanded for resentencing, in a case in which Azano, a foreign national, and his co-conspirators sought to influence local politicians during the 2012 San Diego election cycle by providing campaign contributions.

Rejecting appellants' contention that Congress lacks the power to prohibit foreign nationals from donating and contributing to state and local elections, the panel held that Congress acted within its constitutional authority in enacting 52 U.S.C. § 30121(a). Bound by the Supreme Court's summary affirmance in Bluman v. FEC, 800 F.Supp.2d 281 (D.D.C. 2011), aff'd, 565 U.S. 1104 (2012), the panel rejected appellants' contention that § 30121(a) violates foreign nationals' First Amendment rights.

The panel rejected appellants' contention that 52 U.S.C. § 30109(d), the penalty provision applicable to violations of § 30121, requires that the government prove that a defendant harbors the specific intent to evade § 30121, not merely the intent to commit unlawful conduct. As to the jury instruction on the charge that Singh aided and abetted Azano's unlawful donations, the panel rejected Singh's argument that the district court's failure to include the element that Singh knew Azano lacked immigration status constitutes reversible error. The panel held that the instructions as a whole adequately covered the element of Singh's knowledge of Azano's immigration status.

Appellants contested their convictions under counts 5 through 37, arguing there was insufficient evidence to satisfy the material elements of 18 U.S.C. § 1519 (falsifying campaign records). • Singh argued that § 1519 requires an affirmative act, and that a mere omission, without an affirmative duty, cannot satisfy the actus reus element. The panel held that an omission satisfies the actus reus element for § 1519. The panel observed that Singh was not simply convicted under § 1519, but under 18 U.S.C. § 2(b) (willfully causing an act to be done which if directly performed by him or another would be an offense against the United States) in conjunction with § 1519, in which scenario the actus reus element merges with the mens rea element to focus liability on the person harboring the criminal intent. The panel wrote that the government thus did not need to prove that Singh prepared the campaign disclosure forms or had a duty to report Azano's patronage; rather, that the campaign had a duty to report the information was enough, and § 2(b) authorized holding accountable those with the intent to conceal or falsify records.

• Regarding causation under § 2(b), the panel held that the government presented sufficient evidence for a jury to find that Singh willfully caused the Bonnie Dumanis primary mayoral election campaign to file falsified reports, and therefore affirmed appellants' convictions under count 32. The panel found insufficient evidence that Singh willfully caused the Bob Filner general mayoral election campaign to file falsified reports, and therefore reversed the convictions under count 37.

• Regarding the § 1519 element of an investigation by the United States of a matter within its jurisdiction, the panel held that a jury could reasonably infer that Singh contemplated an investigation due to unlawful activity and intended to direct that investigation away from himself. Singh argued that any investigation of his conduct is not within the jurisdiction of the United States because his conduct involved a local campaign and the falsified campaign disclosure forms violated only state and local law. The panel rejected this contention because the campaign disclosure forms were sought in connection with the FBI's investigation of a federal crime.

• As to counts 5 through 31 and 33 through 36, the panel concluded that a reasonable jury could find beyond a reasonable doubt that Azano concealed his identity from these campaigns by recruiting straw donors, and that he willfully caused both campaigns to file false reports with the intent of obstructing a potential investigation.

Rejecting Singh's challenges to his conspiracy conviction, the panel held that the jury instructions adequately covered Singh's multiple conspiracy theory, and that there was sufficient evidence to show a single conspiracy.

The panel affirmed Azano's conviction under 18 U.S.C. § 922(g)(5)(B) for unlawfully possessing a firearm as a nonimmigrant visa holder. Applying intermediate scrutiny to Azano's Second Amendment challenge, and assuming without deciding that the Second Amendment extends to nonimmigrant visa holders, the panel held that § 922(g)(5)(B)'s prohibition on firearm possession and ownership by nonimmigrant visa holders serves an important public interest in crime control and public safety, without substantially burdening a nonimmigrant visa holder's assumed Second Amendment right. The panel rejected Azano's contentions that his possession of a gun as a B2 visa holder fell within the "pleasure" designation in 22 C.F.R. § 41.31. (b)(2) or automatically qualified as a "sporting purpose" pursuant to 18 U.S.C. § 922(y)(2). The panel also rejected Azano's contention that § 922(g) is unconstitutionally vague as applied to B1/B2 visa holders.

The panel held that the district court did not abuse its discretion in denying Azano's motion for a new trial based on alleged ineffective assistance of his trial counsel, and declined to entertain his ineffective-assistance claim on direct appeal. The panel held that Singh waived his argument that the district court abused its discretion in denying his motion to sever his trial from all defendants except Azano. The panel held that the record does not support Singh's claim that the joint trial compromised his due process rights.

OPINION

M. SMITH, CIRCUIT JUDGE

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...

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