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.
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.
