United States v. Singh
| Citation | 979 F.3d 697 |
| Decision Date | 28 October 2020 |
| Docket Number | No. 17-50387,No. 17-50337,17-50337 |
| 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 | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
The court hereby withdraws the previous opinion filed on May 16, 2019 (Dkt. 81) and recalls the mandate that was issued in Case No. 17-50337 on May 29, 2020 (Dkt. 96).
Jose Susumo Azano Matsura (Azano) 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 (Singh) of various crimes stemming from the campaign contributions; Azano was also convicted of violating federal firearms law. Azano and Singh (together, Appellants) appealed, raising a litany of constitutional, statutory, and procedural arguments. In United States v. Singh , 924 F.3d 1030 (9th Cir. 2019), we affirmed the district court in large part, but reversed Appellants’ convictions for obstruction of justice in violation of 18 U.S.C. § 1519.
The Supreme Court decided Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), which clarified the law with respect to the mens rea of the status element of illegal firearm possession under 18 U.S.C. § 922(g). Given this clarification, the Supreme Court granted certiorari , vacated the judgment, and remanded the case to us for further consideration.
Azano Matsura v. United States , ––– U.S. ––––, 140 S. Ct. 991, 206 L.Ed.2d 172 (2020). Thereafter, we ordered briefing to determine whether " Rehaif ... affect[ed] this Court's prior disposition."
In light of Rehaif , Azano contends we must reverse his conviction for unlawful possession of a firearm because the district court failed to properly instruct the jury on the mens rea of the status element of § 922(g). In addition, Azano contends his indictment was defective for failing to charge the same mens rea element. However, after considering the parties’ briefs and the Court's decision in Rehaif , we conclude Azano's arguments fail.
Because Azano did not object to the jury instructions or indictment in the district court, we review for plain error. Although we agree with the Government that there was error, Azano has not demonstrated that the error seriously affected his substantial rights or the fairness, integrity, or public reputation of his judicial proceedings such that it warrants correction as an exercise of the court's discretion. The evidence on the omitted mens rea element—that Azano knew he was "admitted to the United States under a nonimmigrant visa"—was overwhelming and uncontested such that there is no reasonable probability "the jury's verdict would have been different had the jury been properly instructed." See United States v. Teague , 722 F.3d 1187, 1192 (9th Cir. 2013) (cleaned up).
Accordingly, we again affirm the district court in large part but reverse Azano's and Singh's convictions on count thirty-seven (obstruction of justice in violation of 18 U.S.C. § 1519 ).
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 between San Diego and 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 governmental 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 (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 (Cortes) provided lobbying connections and helped facilitate initial meetings with the two campaign staffs. Mark Chase (Chase) was a local car dealer and Azano's "good friend," who arranged straw donors to donate to the Dumanis mayoral campaign. Chase 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 (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] 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: Additionally, in response to an email from Encinas about forming a PAC for Dumanis, Singh stated,
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 conspiring to commit campaign finance fraud in the 2012 San Diego mayoral elections. The Government later dropped ElectionMall as a defendant and tried the four individuals together. After trial, Cortes and Hester reached plea agreements and pleaded guilty to participating in the campaign contribution scheme. Encinas and Chase, who had been charged as coconspirators in a separate indictment, both also pleaded guilty to participating in the campaign contribution scheme.
Azano and Singh 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 charged. The district court sentenced Azano to three years in custody and three years of supervised release, and sentenced Singh to fifteen months in custody and three years of supervised release. Appellants timely appealed. In United States v. Singh , 924 F.3d 1030 (9th Cir. 2019), we affirmed the district court in large part, but reversed their convictions on count thirty-seven (obstruction of justice in violation of 18 U.S.C. § 1519 ).
While Azano's case was pending appeal, the Supreme Court decided Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), which clarified the law with respect to the mens rea of the status element of illegal firearm possession under 18 U.S.C. § 922(g). Given this clarification, the Supreme Court granted certiorari , vacated the judgment, and remanded the case to us for further consideration. Azano Matsura , 140 S. Ct. at 991. Thereafter, we ordered briefing to determine whether " Rehaif ... affect[ed] this Court's prior disposition."
Appellants raise a number of claims contesting their convictions. We...
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