In United States v. Singh, --- F.3d ---, No. 17-50337 (9th Cir. 2019), the Court affirmed in part, reversed in part, and remanded for resentencing.
This was the appeal from the Azano mayoral contribution scandal. The opinion is 50 pages dealing with a host of issues.
The Court rejected most of the arguments, but agreed the evidence was insufficient as to one count, and remanded for resentencing. The Ninth Circuit's summary is below.
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’sfailure 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.
