and Submitted March 13, 2019 San Francisco, California
from the United States District Court for the Southern
District of California Michael M. Anello, District Judge,
Presiding D.C. No. 3:14-cr-00388-MMA-2, 3:14-cr-00388-MMA-1
J. Krent (argued), IIT Chicago-Kent College of Law, Chicago,
Illinois; Todd W. Burns, Burns & Cohan, San Diego,
California; for Defendant-Appellant Ravneet Singh.
Charles M. Sevilla (argued), San Diego, California, for
Defendant-Appellant Jose Susumo Azano Matsura.
H. Hong (argued), Mark Pletcher, Billy Joe McLain, and
Phillip L.B. Halpern, Assistant United States Attorneys;
Robert S. Brewer Jr., United States Attorney; United States
Attorney's Office, San Diego, California; for
Charles H. Bell Jr. and Terry J. Martin, Bell McAndrews &
Hiltachk LLP, Sacramento, California, for Amici Curiae
California Campaign and Election Law Attorneys.
Before: MILAN D. SMITH, JR., PAUL J. WATFORD, and ANDREW D.
HURWITZ, Circuit Judges.
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.
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
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's
failure 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
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
• 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.
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.
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.
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
SMITH, CIRCUIT JUDGE
Susumo Azano Matsura aspired to participate in developing San
Diego and turning it into the Miami Beach of the west coast.
To help achieve this goal, Azano and his co-conspirators
sought to influence local politicians during the 2012 San
Diego election cycle by providing campaign contributions.
However, as a foreign national, Azano was prohibited by
federal law from donating or contributing to American
convicted Azano and Ravneet Singh of various crimes stemming
from the campaign contributions; Azano was also convicted of
violating federal firearms law. Azano and Singh (together,
Appellants) now appeal, raising a litany of constitutional,
statutory, and procedural arguments. Although we affirm the
district court in large part, we reverse their convictions on
count thirty-seven (obstruction of justice in violation of 18
U.S.C. § 1519).
AND PROCEDURAL BACKGROUND
ran a successful technology business based in Mexico City,
but maintained a family home in San Diego. Although
Azano's wife and children are United States citizens, he
is neither a naturalized United States citizen nor a
permanent resident. Azano, a citizen of Mexico, entered the
United States in January 2010 on a B1/B2 visa, which allows
visitors entry for pleasure or business if the noncitizen
"intends to leave the United States at the end of the
temporary stay." 22 C.F.R. § 41.31(a)(1). Azano
traveled weekly back and forth from San Diego to Mexico City
for business purposes.
trial, the government introduced evidence that Azano had an
interest in developing San Diego, and particularly the Chula
Vista waterfront area. The government introduced testimony
that in order to achieve his development goals, Azano
believed that he needed government cooperation, which
included a relationship with the mayor of San Diego. Azano
had previously formed such relationships in Mexico by making
campaign contributions to candidates for various offices.
Azano set about implementing a similar strategy in San Diego.
With the aid of his co-conspirators, Azano sought to secure
the favor of San Diego mayoral candidates who he believed
would support his development plans. Azano first supported
Bonnie Dumanis during the 2012 primary elections, but when
she lost, he supported Bob Filner in the general election.
Azano did so despite the fact that federal law prohibits
"a foreign national, directly or indirectly," from
making "a contribution or donation of money or other
thing of value . . . in connection with a Federal, State, or
local election." 52 U.S.C. § 30121(a).
funding scheme involved a number of people. Ernie Encinas,
head of Azano's security team, was a former San Diego
police officer with useful political connections who helped
represent Azano's interests within the two campaign
organizations. Marco Polo Cortes provided lobbying
connections and helped facilitate initial meetings with the
two campaign staffs. Mark Chase was a local car dealer and
Azano's "good friend," who arranged straw
donors to donate to the Dumanis mayoral campaign, and later
disguised Azano's donations to Filner's political
action committee (PAC) and other entities by writing checks
from his personal and business accounts. Edward Susumo Azano
Hester, Azano's son, recruited straw donors to give to
the Dumanis campaign.
was the CEO of ElectionMall, a media platform offering a
"one-stop sho[p] of technology to candidates and
political parties running for office." Singh first
worked with Azano on a Mexican presidential campaign in 2011.
This professional relationship continued into the mayoral
campaigns of Dumanis and Filner. Aaron Rosheim, the former
director of web strategy at ElectionMall, testified that
Azano paid ElectionMall for work on the San Diego campaigns.
For this work, Singh billed Azano's Mexican companies,
using the code names "Betty Boop" for Dumanis's
campaign and "Plastic Man" for Filner's
campaign. Evidence also suggested that Singh tried to conceal
any paper trail of his work for Azano. An internal
ElectionMall email from Singh with the subject title
"OLD invoices for Mr. A" stated: "Please
don't have cynthia or anyone else send things with a code
name. And then list the clients name in a [sic] email. That
is stupid and dangerous for me." Additionally, in
response to an email from Encinas about forming a PAC for
Dumanis, Singh stated, "I am not responding to this
email. Bec[au]se of the legal ram[i]fications."
federal grand jury returned a Third Superseding Indictment
(the Indictment) charging four individuals- Azano, Singh,
Cortes, and Hester-and one corporate defendant, ElectionMall,
with illegally conspiring to commit campaign finance fraud in
the 2012 San Diego mayoral elections. The government later
dropped ElectionMall as a defendant and the four individuals
were tried together. After trial, Cortes and Hester reached
plea agreements and pled guilty to participating in the
campaign contribution scheme. Encinas and Chase, who had been
charged as co-conspirators in a separate indictment, both
also pled guilty to participating in the campaign
were charged in count one of the Indictment with conspiracy
to violate the Federal Election Campaign Act (FECA), 52
U.S.C. §§ 30109(d)(1)(A) and 30121(a)(1)(A),
unlawful campaign donations by a foreign national, and
conspiracy to falsify campaign records, in violation of 18
U.S.C. § 1519. Both were charged in count three with the
substantive offense of making unlawful campaign donations as
a foreign national. Singh was charged in counts thirty-two
and thirty-seven with the substantive offense of falsifying
campaign records in violation of 18 U.S.C. § 1519. Azano
was similarly charged in counts five through thirty-seven
with the substantive offense of falsifying campaign records.
Finally, Azano was charged in count four with making a
conduit contribution in connection with a federal election,
in violation of 52 U.S.C. §§ 30109(d)(1)(A) and
30122, and in count thirty-nine with unlawfully possessing a
firearm as an alien in violation of 18 U.S.C. §
found Appellants guilty on all the counts with which they
were respectively charged. On October 27, 2017, the district
court sentenced Azano to three years in custody and three
years of supervised release, and on August 31, 2017 sentenced
Singh to fifteen months in custody and three years of
supervised release. Appellants timely appealed.
raise a number of claims contesting their convictions. We
address each in turn.
first argue that 52 U.S.C. § 30121 is unconstitutional
on two grounds: (1) it exceeds Congress's jurisdiction to
legislate concerning state and local elections, and (2) it
violates foreign nationals' First Amendment speech
rights. We review the constitutionality of a statute de novo.
United States v. Jones, 231 F.3d 508, 513 (9th Cir.
first consider the genesis of § 30121. As donations and
contributions have grown more important to the campaign
process, so too has concern over foreign influence in
American elections. In 1966, Congress amended the Foreign
Agents Registration Act to prohibit foreign governments and
entities from contributing to American political candidates.
See Pub. L. No. 89-486, § 8, 80 Stat. 244,
248-49. Subsequently, Congress banned all foreign
nationals from making such contributions.
See Federal Election Campaign Act Amendments of
1974, Pub. L. No. 93-443, § 101(d), 88 Stat. 1263, 1267.
suspicions of foreign influence in American elections
remained a pervasive concern. Following the 1996 election,
the Senate Committee on Governmental Affairs investigated
foreign campaign contributions. See S. Rep. No.
105-167 (1998). The Committee Report identified efforts by
agents of the People's Republic of China to
"influence U.S. policies and elections through, among
other means, financing election campaigns."
Id., pt. 1, at 47. The report focused chiefly on
federal elections, but also referred to a "seeding
program" to develop individuals to run in state and
local elections. Id., pt. 2, at 2509.
response to the Committee Report, Congress enacted the
Bipartisan Campaign Reform Act of 2002 (BCRA), which amended
FECA and further limited foreign nationals' ability to
participate in elections. See Pub. L. No. 107-155,
§ 303, 116 Stat. 81, 96. As amended, § 30121(a)
It shall be unlawful for-
(1) a foreign national, directly or indirectly, to make-
(A) a contribution or donation of money or other thing of
value, or to make an express or implied promise to make a
contribution or donation in connection with a Federal, State,
or local election;
(B) a contribution or donation to a committee of a political
(C) an expenditure, independent expenditure, or disbursement
for an electioneering communication . . .
52 U.S.C. § 30121(a).
challenge whether Congress has the power to prohibit foreign
nationals from donating and contributing to state and local
elections. Due to the federal government's plenary power
over foreign affairs and immigration, we find that Congress
has such a power.
federal government has the "inherent power as sovereign
to control and conduct relations with foreign nations."
Arizona v. United States, 567 U.S. 387, 395 (2012);
see also United States v. Curtiss-Wright Exp. Corp.,
299 U.S. 304, 318-19 (1936). The Constitution grants the
federal government an "undoubted power over the subject
of immigration and the status of aliens."
Arizona, 567 U.S. at 394; see also U.S.
Const. art. I, § 8, cl. 4 (granting Congress the power
to "establish an uniform Rule of Naturalization").
Thus, where, as here, Congress has made a judgment on a
matter of foreign affairs and national security by barring
foreign nationals from contributing to our election
processes, it retains a broad power to legislate. The Supreme
Court has recognized that "any policy toward aliens is
vitally and intricately interwoven with contemporaneous
policies in regard to the conduct of foreign relations, the
war power, and the maintenance of a republican form of
government." Harisiades v. Shaughnessy, 342
U.S. 580, 588-89 (1952). A prohibition on campaign donations
and contributions by foreign nationals is necessary and
proper to the exercise of the immigration and foreign
relations powers. See U.S. Const. art. I, § 8,
cl. 18. Accordingly, Congress was within its power when it
acted to protect the country's political processes after
recognizing the susceptibility of the elections process to
assert that because the Constitution "intended to
preserve to the States the power . . . to establish and
maintain their own separate and independent
governments," Congress may not legislate over state and
local elections at all. Oregon v. Mitchell,
400 U.S. 112, 124 (1970) (opinion of Black, J.). In
Mitchell, the Court found unconstitutional a
provision of the Voting Rights Act that set the voting age
for state and local elections at eighteen. Id. at
117-18. Similarly, in James v. Bowman, the Court
struck down a federal statute criminalizing bribery in state
and local elections. 190 U.S. 127, 142 (1903).
these cases inapposite. They discuss Congress's authority
to regulate state elections as they relate to citizens of the
United States. In contrast, § 30121(a)(1) regulates only
foreign nationals, which is within the ambit of
Congress's broad power to regulate foreign affairs and
condition immigration. Therefore, the case before us is
readily distinguished from Mitchell and
we hold that Congress acted within its constitutional
authority in enacting § 30121(a).
consider Appellants' First Amendment challenge. The
district court determined § 30121(a) does not violate
foreign nationals' First Amendment rights, concluding
that "it is bound by [the decision in Bluman v.
FEC, 800 F.Supp.2d 281 (D.D.C. 2011),
aff'd, 565 U.S. 1104 (2012)] due to the Supreme
Court's summary affirmance." Appellants argue that
we are not bound by the summary affirmance, because "a
summary affirmance by [the Supreme] Court is a 'rather
slender reed' on which to rest future decisions."
Morse v. Republican Party of Va., 517 U.S. 186, 203
n.21 (1996) (quoting Anderson v. Celebrezze, 460
U.S. 780, 784 n.5 (1983)). Further, because Bluman
considered foreign national participation in a
federal election-not, as here, a state or
local election-Appellants argue that the summary
affirmance poses no bar.
Supreme Court's summary affirmances bind lower courts,
unless subsequent developments suggest otherwise. . . .
Although . . . the Supreme Court is more willing to
reconsider its own summary dispositions than it is to revisit
its prior opinions, this principle does not release the lower
courts from the binding effect of summary affirmances."
United States v. Blaine Cty., 363 F.3d 897, 904 (9th
Cir. 2004) (citing Hicks v. Miranda, 422 U.S. 332,
344-45 (1975)). And, although "[t]he precedential effect
of a summary affirmance extends no further than the precise
issues presented and necessarily decided by those
actions," Green v. City of Tucson, 340 F.3d
891, 902 (9th Cir. 2003) (quoting Anderson, 460 U.S.
at 784 n.5), Bluman did decide the precise issue
present in this case. In Bluman, a plaintiff sought
to donate money to ...