United States v. Singh, No. 18-50423

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: PARKER, Circuit Judge
• Citation: 995 F.3d 1069
• Docket Number: No. 18-50423
• Decision Date: 03 May 2021
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harinder SINGH, AKA Lnu, Sonu, Defendant-Appellant.

995 F.3d 1069

UNITED STATES of America, Plaintiff-Appellee,
v.
Harinder SINGH, AKA Lnu, Sonu, Defendant-Appellant.

No. 18-50423

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 9, 2020 Pasadena, California
Filed May 3, 2021

PARKER, Circuit Judge:

After a seven-day trial, a jury convicted Harinder Singh ("Singh") of one count of conspiracy to launder money (see 18 U.S.C. § 1956(h) ), one count of conspiracy to operate an unlicensed money transmitting business (see 18 U.S.C. § 371 ), and one count of operating such a business (see 18 U.S.C. § 1960 ). The convictions stemmed from Singh's activities as a participant in a money transmitting enterprise which transferred and laundered drug trafficking proceeds.¹

On this appeal, Singh raises a number of contentions, but principally argues that the government adduced insufficient evidence to support his conviction. He also argues that the government's proof at trial and its

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closing argument constructively amended the indictment and that the district court erroneously limited cross-examination of a government witness. Lastly, Singh argues that the court below erred in adding a six-level sentencing enhancement because he knew the laundered funds were drug proceeds. See U.S.S.G. § 2S1.1(b)(1). Finding no merit to these contentions, we affirm.

BACKGROUND

Singh's convictions derive from his involvement in a hawala operation, a money transmitting network that he and his coconspirators used to move drug trafficking proceeds from Canada to the United States and eventually to Mexico. Considered in the light most favorable to the government, its proof at trial established the following. In early 2012, Gurkaran Singh Isshpunani began to work for Deepinder "Pindi" Singh, a drug trafficker, to transfer drug proceeds from Canada to the United States. As a hawala broker, Isshpunani collected Canadian funds from Pindi and worked with other hawala dealers (including the defendant) to coordinate the transfer of equivalent U.S. funds to California where they were used to pay Mexican drug suppliers. Singh worked in California. His primary role in the conspiracy was to deliver drug proceeds to various hawala brokers in California and elsewhere who then orchestrated the delivery of the funds to a Mexican drug cartel.

Hawala is a system designed to transfer funds from point to point outside of formal money transmission channels without the physical movement of money. Typically, the system is used to transfer funds from one country to another through hawala brokers. A broker in one country receives money and then communicates with a broker in the country receiving the transfer. The broker in the receiving country then pays out an equivalent amount (deducting for fees) to the recipient in the appropriate currency. Hawala transactions are discreet. They typically involve minimal record-keeping, are not subject to government regulation and are premised on trust.

Hawala is widely used in communities that have limited access to formal banking structures and, for example, is an important vehicle for remittance payments from immigrants to family members in their home countries. But because of its informality, lack of record keeping and government oversight, hawala may be used to transfer illegally derived funds, as was the case here.

The government's proof established that the network in which Singh was involved transferred, over a considerable period of time, large sums of Canadian dollars from Pindi's Canadian drug operation to Los Angeles. Isshpunani worked with a broad network of hawala brokers, based in California and in India, to orchestrate the delivery of funds which had been sent to California to the Mexican cartel.

In spring of 2012, Singh was recruited into the operation by his uncle, Sucha Singh, who ran a hawala business. Initially, Singh worked for his uncle but later worked independently. Singh's primary responsibility was collecting and distributing money to Pindi's associates. The government's proof at trial established that Singh knew the funds were drug proceeds. Sanjiv "Bobby" Wadhwa, a co-defendant who later became a government witness, testified at trial that he told Singh that the funds Singh moved were drug proceeds.

Singh was a hard worker. In 2012, he completed 10–15 deliveries for Isshpunani of sums ranging from $100,000 to about $800,000. He received $250 for each $100,000 delivered. Singh also worked directly with Wadhwa, ultimately completing 30–40 money collections of amounts ranging from $50,000 to $150,000 between April and October 2012.

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These transactions were clothed in secrecy and a number of steps, above and beyond those routinely used in hawala transactions, were taken to hide the nature of the transactions. Singh switched out his SIM card and phone number every 20 to 25 days. Members of the conspiracy used burner phones—disposable, prepaid, effectively untraceable devices to communicate among themselves. Transfers involved code words such as "shaman" and "merchandise" to disguise the nature of the transactions. The hawala merchants used serial numbers on dollar bills to verify that the person who received the cash was the intended recipient. Higher than usual fees were charged.

The government's proof at trial included video surveillance records that showed Singh making deliveries on a number of occasions as well as Singh's own ledger which documented his activities and included cash amounts, recipients, and serial numbers. Finally, the government adduced evidence that Singh was stopped in October 2012 by a California Highway Patrol officer and told the officer that bags found in the car carried his wife's shoes, but the bags actually contained cash that he was on his way to deliver. After discovering the bags, the officer arrested Singh. After the arrest, law enforcement officers searched his home and seized large sums of cash as well as drug ledgers.

In addition to arguing that this evidence was insufficient to establish his guilt on the three counts on which he was convicted, Singh argues that two errors by the trial court require reversal. As noted, Sanjiv "Bobby" Wadhwa testified for the government at trial as a cooperating witness. At some point, defense counsel received information that the FBI had investigated him based on an allegation that he had planned to murder Taran Singh, another hawala dealer. Both were alleged to be members of the conspiracy. The FBI ultimately concluded that the allegation was unsubstantiated and closed the case. At trial, defense counsel attempted to cross-examine Wadhwa regarding his involvement in the murder-for-hire plot, arguing that the evidence was relevant to his credibility. Defense counsel also sought to have recordings of Wadhwa speaking about the murder-for-hire plans, including discussing a $30,000 payment, admitted into evidence to refresh his recollection.

The court ruled that defense could inquire into whether Wadhwa was involved in the murder-for-hire scheme but that, citing Fed. R. Evid. 608(b), if Wadhwa denied his involvement, the inquiry must end, and extrinsic evidence could not be admitted to impeach him. When questioned, Wadhwa disavowed any involvement in a murder-for-hire scheme. The court explained that it limited cross-examination in order to "prevent impeachment of [him] on a collateral matter and to avoid a mini-trial on the issue of the murder-for-hire plot[.]" The court also excluded the recordings. Singh contends that these limitations violated the Confrontation Clause, U.S. Const. amend. VI.

Next, Singh contends that he is entitled to reversal because at trial the court permitted a constructive amendment of the indictment. Singh contends that the indictment charged only "a single, joint money transmitting business consisting of the entire hawala network and the various transactions ... within it." At trial, however, the government offered proof and argued to the jury that Singh operated a money transmitting business. This variance, he contends, violated the Fifth Amendment, U.S. Const. amend. V.

Following Singh's conviction, the Probation Office calculated an offense level of 34. The components were a base offense level of eight, an 18-level enhancement because the amount of laundered funds was between

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$3.5 and $9.5 million, a six-level enhancement because Singh knew or believed the funds were related to drug trafficking and a two-level enhancement because Singh was convicted under 18 U.S.C. § 1956. Based on a Criminal History Category of I, these calculations yielded an advisory Guidelines range of 151–188 months. At sentencing, Singh objected to the six-level enhancement, contending that there was a lack of clear and convincing proof that he knew the funds were derived from drugs. The court disagreed but sentenced him well below his Guidelines range to 70 months. This appeal followed. For the reasons that follow, we affirm.

DISCUSSION

I

Singh's main arguments are that the government adduced insufficient evidence of a purpose to conceal, as required by 18 U.S.C. § 1956(a)(1)(B)(i), to support his conviction for concealment money laundering under Count I, and insufficient...