10/28/20: Revised opinion in the Azano campaign finance case

Today, the Ninth Circuit withdrew its former opinion in the Azano campaign finance case and issued a revised opinion, available here.  My summary of the original opinion is below.  

After the original opinion, the Supreme Court reversed and sent the case back to the Ninth in light of Rehaif because, in addition to the campaign charges, Azano had been convicted of unlawfully possessing a firearm as an alien in violation of 18 U.S.C. § 922(g)(5)(B).

As far as I can tell, the only material difference between the new opinion and old opinion is the Rehaif issue.  In short, on plain error review, the Court affirmed the gun conviction, holding the Government must prove only that Azano knew, at the time he possessed the firearm, that he belonged to one of the prohibited status groups enumerated in § 922(g)—e.g., nonimmigrant visa holders; it need not also prove that he knew his status prohibited him from owning a firearm.

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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.  Congrats to Chuck Sevilla and his team on getting the resentencing. 

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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. 

10/22/20: Case on the terrorism enhancement under U.S.S.G. § 3A1.4

In United States v. Alhaggagi, --- F.3d ---, No. 19-10092 (9th Cir. 2020), a divided panel vacated the defendant's sentence.  

The defendant pleaded guilty to, among other crimes, attempting to provide material support to a terrorist organization in violation of 18 U.S.C. § 2339B(a)(1).  The conviction was based on his opening  social media accounts for people he knew sympathized with ISIS.  

In imposing sentence, the district court concluded the offense was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against the government conduct,” and thus triggered application of a terrorism enhancement pursuant to U.S.S.G. § 3A1.4.

The majority determined this was error and reversed:  

"The terrorism enhancement, U.S.S.G. § 3A1.4, imposes a significantly harsher punishment on those who commit certain types of crimes of terrorism. The enhancement increases a defendant’s offense level to a minimum of 32 and designates a defendant’s criminal history category as Category VI, regardless of whether the defendant has previously committed a crime. U.S.S.G. § 3A1.4. To trigger this enhancement, the government must prove elements distinct from those of the crime of conviction, specifically that the offense committed 'involved, or was intended to promote, a federal crime of terrorism.'

"The term 'federal crime of terrorism' is defined as 'an offense that is . . . calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,' 18 U.S.C. § 2332b(g)(5)(A), and that 'is a violation of' certain enumerated statutes, 18 U.S.C. § 2332b(g)(5)(B). Both parts of § 2332b(g)(5) must be satisfied for the enhancement to apply.

"The material support statute, by contrast, requires proof that a defendant attempted to, conspired to, or did provide 'material support or resources to a foreign terrorist organization,' knowing 'that the organization is a designated terrorist organization' or 'that the organization has engaged or engages in terrorism.' 18 U.S.C. § 2339B(a)(1). It is possible for a defendant to provide material support to a terrorist group in violation of 18 U.S.C. § 2339B(a)(1) without intending that the support or resources would influence, affect, or retaliate against government conduct to satisfy the first prong of the definition of federal crime of terrorism."

"The enhancement, therefore, does not automatically apply to all material support offenses. Congress created this distinction in order to punish certain dangerous terrorists more severely than persons who committed non-violent crimes. Thus, to warrant a substantial increase in punishment pursuant to the terrorism enhancement, a defendant must have the requisite intent necessary to satisfy the definition of federal crime of terrorism, beyond the intent required to establish a violation of the material support statute."

In particular, "§ 2332b(g)(5)(A) imposes a specific intent requirement."

"The parties do not dispute that Alhaggagi’s conviction satisfies the second prong of the definition of federal crime of terrorism. The crime of conviction here—attempt to provide material support in violation of 18 U.S.C. § 2339B(a)(1)—is one of the enumerated statutes in 18 U.S.C. § 2332b(g)(5)(B)."

"The remaining question is whether Alhaggagi’s conduct satisfies the first prong: whether his attempt to provide material support to a terrorist organization by opening social media accounts was 'calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.'"

On this prong, the Court held the government did not meet its burden: "Alhaggagi contends the district court erred in applying the terrorism enhancement because it centered its analysis on ISIS, not on Alhaggagi’s conduct or mental state. The enhancement, Alhaggagi argues, specifically requires the district court to consider the latter, whereas the offense itself implicates the former. Alhaggagi concludes that because the district court failed to determine whether he knew how the accounts he opened were to be used, it could not find that he specifically intended that the accounts be used to coerce or intimidate a government. We agree." 

10/13/20: “gun bulges” under the fact-based Terry inquiry

In United States v. Bontemps, --- F.3d ---, No. 19-10196 (9th Cir. 2020), a divided panel affirmed the district court's denial of the defendant's suppression motion.  

The case arose out of a Terry stop based on officers observation of a large bulge in the defendant's sweatshirt consistent with a gun. 

According to the majority: "Precedent suggests—and common sense confirms— what we now hold here: a bulge that appears to be a concealed firearm can form the basis for a Terry stop in a jurisdiction where carrying a concealed weapon is presumptively unlawful. This holding accords not only with our past cases discussed above but also with the basic mode of analysis under Terry, in which courts look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing."

The majority distinguished drug bulges from gun bulges: "Cases involving 'drug bulges,' however, present somewhat different considerations than 'gun bulges' under the fact-based Terry inquiry. While guns are made of rigid materials (such as metal or hard plastics) and possess a relatively distinctive shape, drugs or packages of drugs come in different shapes and sizes, some quite small, soft, and nondescript."

"Our holding is []that a bulge suggestive of a firearm can be sufficient to create reasonable suspicion, and that in this case there was ample evidence from which to conclude that Bontemps’s 'obvious' bulge was likely a concealed firearm."

The dissent, however, made the point that "seeing a non-descript bulge without more should not allow police officers to stop and frisk citizens. And the majority’s holding gives license to stop and frisk any citizen based upon nothing more than officer testimony that the officer had seen a bulge."

10/6/20: Case on “official detention” . . . “pending deportation.”

 In United States v. Pacheco, --- F.3d ---, No. 19-10014 (9th Cir. 2020), the Court affirmed the defendant's convictions for sexually abusing minors at a facility that housed unaccompanied noncitizen children.  

The issue on appeal was whether the government proved the victims were in “official detention”-- a term that extends to detentions “pending . . . deportation” -- for purposes of 18 U.S.C. § 2246(5)(A).

The Court held the government met its burden.  

At the time of the conduct, the minors were in a shelter that housed unaccompanied noncitizen children pursuant to a federal contract. They were also in deportation proceedings, although they had not been ordered removed and ultimately were not deported. 

The Court concluded: "deportation is 'pending' for the purposes of 18 U.S.C. § 2246(5)(A) when the victims of the defendant’s conduct are in unresolved deportation or removal proceedings. We interpret “pending” by giving the term its ordinary meaning.  Thus, where, as here, the government had issued Notices to Appear in Immigration Court, Pacheco’s victims were pending deportation until the completion of that process, whether it resulted in deportation or not. In other words, the case has not 'achieved final resolution,' and the victims are 'pending . . . deportation' insofar as the proceedings could result in their removal from the United States."