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United States v. Singh

United States Court of Appeals, Ninth Circuit

May 16, 2019

United States of America, Plaintiff-Appellee,
Ravneet Singh, AKA Ravi Singh, Defendant-Appellant. United States of America, Plaintiff-Appellee,
Jose Susumo Azano Matsura, AKA Mr. A, AKA Mr. Lambo, Defendant-Appellant.

          Argued and Submitted March 13, 2019 San Francisco, California

          Appeal 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

          Harold 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.

          Helen 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 Plaintiff-Appellee.

          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.


         Criminal Law

         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'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 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.



         Jose 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 campaigns.

         A jury 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).


         I. Factual Background

         Azano 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.

         At 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).

         Azano's 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.

         Singh 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."

         II. Procedural Background

         A 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 contribution scheme.

         Appellants 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), [1] for 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. § 922(g)(5)(B).

         A jury 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.


         Appellants raise a number of claims contesting their convictions. We address each in turn.


         Appellants 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. 2000).

         We 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[2] from making such contributions. See Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, § 101(d), 88 Stat. 1263, 1267.

         Still, 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.

         In 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) currently states,

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 party; or
(C) an expenditure, independent expenditure, or disbursement for an electioneering communication . . .

52 U.S.C. § 30121(a).


         Appellants 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.

         The 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 foreign interference.[3]

         Appellants 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).

         We find 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 James.

         Accordingly, we hold that Congress acted within its constitutional authority in enacting § 30121(a).


         We next 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.

         "[T]he 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 ...

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