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."

 

 

9/25/20: This appeal concerns the Fourth Amendment’s limits on the government’s use of deceit when executing a valid search warrant

In United States v. Ramirez, --- F.3d ---, No. 18-10429 (9th Cir. 2020), a divided panel reversed the denial of the defendant's suppression motion.

This is an important case worth reading.  Here's the intro:

"This appeal concerns the Fourth Amendment’s limits on the government’s use of deceit when executing a valid search warrant."

"[Agents] obtained a warrant to search the residence of Stefan Ramirez and any vehicle registered to Ramirez located at or near the residence. Under the warrant and the law established by Michigan v. Summers, 452 U.S. 692 (1981), the agents had no authority to seize Ramirez or search his car when they arrived to execute the warrant, because neither was at the residence. The agents manufactured the authority to seize them by falsely claiming to be police officers responding to a burglary to lure Ramirez home. By luring Ramirez home, the agents’ successful deceit enabled them to obtain incriminating statements from Ramirez and evidence from his car and person. The district court denied Ramirez’s motion to suppress the statements and evidence, and Ramirez thereafter pleaded guilty to receipt and distribution of material involving the sexual exploitation of minors. We hold that, under the particular facts of this case, the agents’ use of deceit to seize and search Ramirez violated the Fourth Amendment. Accordingly, we reverse the suppression order and remand for further proceedings."

The majority continued: "Although the propriety of a ruse search or seizure depends on the particular facts of each case, our precedent draws a clear line between two categories of deception. Law enforcement’s use of deception is generally lawful when the chosen ruse hides the officer’s identity as law enforcement and facilitates a search or seizure that is within its lawful authority, such as pursuant to a valid search warrant. Deception is unlawful when the government makes its identity as law enforcement known to the target of the ruse and exploits the target’s trust and cooperation to conduct searches or seizures beyond that which is authorized by the warrant or other legal authority, such as probable cause."

"[W]hen the government agent is known to the suspect as such, and invokes the trust or cooperation of an individual to search or seize items outside what is lawfully authorized, such a ruse is unreasonable under Fourth Amendment."

"Law enforcement does not have carte blanche to use deception to effect a search and seizure. A ruse that reveals the officers’ identity as law enforcement but misrepresents the purpose of their investigation so that the officers can evade limitations on their authority raises serious Fourth Amendment concerns."

"[T]he ruse used here was not a permissible means to effect the search and seizure of Ramirez. The FBI agents posed as police officers and played on Ramirez’s trust and reliance on their story that his home had been burglarized to bring Ramirez and his car within the ambit of the warrant, when they were not otherwise within its ambit. The FBI had no acceptable government interest in using this ruse. Thus, balancing the strong Fourth Amendment interest against the non-existent government interest, the FBI’s conduct was plainly unreasonable under the Fourth Amendment."

"Balancing the Government’s justification for its actions against the intrusion into the defendant’s Fourth Amendment interests, the Government’s conduct was clearly unreasonable. The Fourth Amendment interest is near its zenith in this case because the agents betrayed Ramirez’s trust in law enforcement in order to conduct searches and seizures beyond what they were lawfully authorized to do."

The Court also considered, "whether Ramirez’s statements, made after Agent Ratzlaff revealed the true purpose of the investigation and asked to speak with him, should be suppressed because they were tainted by the illegality of the initial seizure."  

The majority held they should. 

"[T]he Government failed to carry its burden to show that Ramirez’s incriminating statements were not obtained through 'exploitation of illegality'—the use of the ruse to circumvent the Summers rule and unlawfully seize Ramirez— rather than 'by means sufficiently distinguishable to be purged of the primary taint.'"

Judge Collins dissented. 

9/17/20: Automatic dismissal

 In United States v. Qazi, --- F.3d ---, No. 18-10483 (9th Cir. 2020), the Court vacated the defendant's conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and remanded with instructions to dismiss the indictment.

In the district court, before trial, the pro se defendant, filed a "Motion to Dismiss Indictment for Failure to State Offense," stating "[t]he Defendant . . . moves . . . to dismiss the Indictment with prejudice, for failure to allege all the elements of a Federal Crime."

Following its well-established obligation to construe pro se filings liberally, the Court determined this was sufficient to trigger the rule from United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999), which holds an indictment missing an essential element challenged before trial must be dismissed regardless of whether the omission prejudiced the defendant.

Here, the indictment failed to alleged the defendant’s knowledge of his felon status.  Following Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019), this is a required element under Section 922(g). 

The Court explained: "This case is simple. When Qazi insisted his indictment 'fail[ed] to allege all the elements of a Federal Crime,' he was right. When the district court concluded 'the indictment tracks the language of 18 U.S.C. 922(g), [and] sets forth the elements of the offense,” it was wrong. Liberally construed, Qazi’s objection to the indictment was sufficient to trigger Du Bo’s dismissal rule."

9/10/20: Good Fourth Amendment attenuation case

 In United States v. Garcia, --- F.3d ---, No. 19-10073 (9th Cir. 2020), the Court reversed the denial of the defendant's suppression motion.  

Officers violated the Fourth Amendment when they entered the defendant's home without a warrant, ostensibly to determine whether someone inside posed a threat to their safety or required emergency assistance. 

Though the officers knew nothing about Garcia before entering his home, they discovered him inside, detained him at gunpoint, took him outside in handcuffs, and ran a records check that revealed he was subject to a supervised release condition authorizing suspicionless searches of his residence. 

After discovering this condition, the same officers who had conducted the initial unlawful entry reentered the home to conduct a full search, during which they found methamphetamine and other incriminating evidence.

The issue on appeal was "whether, under the attenuation doctrine, the discovery of the suspicionless search condition was an intervening circumstance that broke the causal chain between the initial unlawful entry and the discovery of the evidence supporting Garcia’s conviction in this case and the revocation of supervised release in the underlying case."

The Court held it was not. 

• The attenuation doctrine is an exception to the usual rule of exclusion or suppression of the evidence. It applies when “‘the connection between the illegality and the challenged evidence’ has become so attenuated ‘as to dissipate the taint caused by the illegality.’” 

• In determining whether an intervening event has sufficiently purged the taint of a preceding Fourth Amendment violation, we consider three factors: (1) “the ‘temporal proximity’ between the unconstitutional conduct and the discovery of evidence,” (2) “the presence of intervening circumstances,” and (3) “the purpose and flagrancy of the official misconduct.” 

The government conceded the first factor favored suppression.  

As to the second factor, "[w]hile the suspicionless search condition here granted the officers the legal authority to search Garcia’s home without cause, it did not—unlike the warrant in Strieff—require them to exercise that authority. The officers’ decision to avail themselves of the suspicionless search condition was volitional, not 'ministerial.' This distinction is important because we have held that the attenuation doctrine does not apply when an officer’s decision to exercise his discretionary authority is 'significantly direct[ed]' by information learned during an unlawful search."

And "when an officer’s exercise of discretionary authority is 'significantly directed' by information learned during an unlawful search, the mere existence of that authority is not an intervening cause that purges the taint of the earlier constitutional violation."

"[T]he Government did not present any evidence regarding the officers’ reasons for entering Garcia’s home the second time, much less evidence sufficient to show that this decision had nothing to do with what they saw inside the home minutes earlier, during their unconstitutional search."

"The officers did not enter Garcia’s home with blinders on. And the record shows that in the few minutes between the two searches, the officers’ motives for entering the home abruptly changed from non-investigatory to investigatory. Yet the Government offers nothing more than its say-so to explain this sudden shift. That is not enough to avoid suppression. Cf. United States v. Bocharnikov, 966 F.3d 1000, 1007 (9th Cir. 2020) (Chhabria, J., concurring) (“To rule in the government’s favor on this appeal would have required us to bend over backwards, doing the government’s work for it. Federal prosecutors should not need that kind of help from the courts, nor should they expect to receive it.”). In the absence of evidence showing that the officers’ decision to conduct the second search was untainted by what they saw during the initial unlawful entry, we conclude that the Government has not met its burden of showing that the discovery of the suspicionless search condition was a sufficient intervening circumstance."

As to the third factor, "we find it particularly significant that the officers entered Garcia’s home without cause, detained him at gunpoint, and removed him from the premises in handcuffs. The home is 'first among equals' for purpose of the Fourth Amendment, and it is no trifling matter for police to storm a residence with guns drawn. Incursions of this nature can have tragic results."

"Examining the totality of the circumstances, we conclude that even accepting the district court’s finding that the officers acted in good faith, this fact alone is not enough to justify admission of the evidence."