UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAVNEET SINGH, AKA Ravi Singh, Defendant-Appellant.
No. 17-50337
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed October 28, 2020
D.C. No. 3:14-cr-00388-MMA-2; Appeal from the United States District Court for the Southern District of California, Michael M. Anello, District Judge, Presiding; On Remand from the United States Supreme Court; Argued and Submitted March 13, 2019, San Francisco, California
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE SUSUMO AZANO MATSURA, AKA Mr. A, AKA Mr. Lambo, Defendant-Appellant.
No. 17-50387
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed October 28, 2020
D.C. No. 3:14-cr-00388-MMA-1; OPINION
Before: MILAN D. SMITH, JR., PAUL J. WATFORD, and ANDREW D. HURWITZ, Circuit Judges.
Order; Opinion by Judge Milan D. Smith, Jr.
SUMMARY*
Criminal Law
Jose Susumo Azano Matsura (Azano), a foreign national, and his co-conspirators sought to influence local politicians during the 2012 San Diego election cycle by providing campaign contributions. In the new opinion, the panel reversed Azano’s and Ravneet Singh’s convictions on count 37 for falsification of campaign records, affirmed all other convictions including Azano’s conviction for unlawfully possessing a firearm, vacated the sentences, and remanded for resentencing.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
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
The panel rejected appellants’ contention that
Appellants contested their convictions under counts 5 through 37, arguing there was insufficient evidence to satisfy the material elements of
- 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 under18 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
- 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 to18 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. - Reviewing Azano’s
§ 922(g)(5)(B) conviction for plain error in light of Rehaif, the panel held:- that 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 owing a firearm. - that, as the Government conceded, the district court erred by not requiring the Government to prove Azano’s knowledge of his status as being admitted on a nonimmigrant visa, and that error is clear following Rehaif.
- that Azano did not demonstrate that the error seriously affected his substantial rights or the fairness, integrity, or public reputation of his judicial proceedings such that it warrants correction as an exercise of this court’s discretion, given that the evidence on the omitted mens rea element was overwhelming and uncontested, and there is no reasonable probability the jury’s verdict would have been different had the jury been properly instructed.
- that 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
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.
COUNSEL
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.
ORDER
The court hereby withdraws the previous opinion filed on May 16, 2019 (Dkt. 81) and recalls the mandate that was issued in Case No. 17-50337 on May 29, 2020 (Dkt. 96).
OPINION
M. SMITH, Circuit Judge:
Jose Susumo Azano Matsura (Azano) 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 (Singh) of various crimes stemming from the campaign contributions; Azano was also convicted of violating federal firearms law. Azano and Singh (together, Appellants) appealed, raising a litany of constitutional, statutory, and procedural arguments. In United States v. Singh, 924 F.3d 1030 (9th Cir. 2019), we affirmed the district court in large part, but reversed Appellants’ convictions for obstruction of justice in violation of
The Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019), which clarified the law with respect to the mens rea of the status element of illegal firearm possession under
In light of Rehaif, Azano contends we must reverse his conviction for unlawful possession of a firearm because the district court failed to properly instruct the jury on the mens rea of the status element of
Because Azano did not object to the jury instructions or indictment in the district court, we review for plain error. Although we agree with the Government that there was error, Azano has not demonstrated that the error seriously affected his substantial rights or the fairness, integrity, or public reputation of his judicial proceedings such that it warrants correction as an exercise of the court’s discretion. The evidence on the omitted mens rea element—that Azano knew he was “admitted to the United States under a nonimmigrant visa”—was overwhelming and uncontested such that there is no reasonable probability “the jury’s verdict would have been different had the jury been properly instructed.” See United States v. Teague, 722 F.3d 1187, 1192 (9th Cir. 2013) (cleaned up).
Accordingly, we again affirm the district court in large part but reverse Azano’s and Singh’s convictions on count thirty-seven (obstruction of justice in violation of
FACTUAL AND PROCEDURAL BACKGROUND
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.”
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 governmental 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.”
Azano’s funding scheme involved a number of people. Ernie Encinas (Encinas), head of Azano’s security team, was a former San Diego police officer with useful
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 conspiring to commit campaign finance fraud in the 2012 San Diego mayoral elections. The Government later dropped ElectionMall as a defendant and tried the four individuals together. After trial, Cortes and Hester reached plea agreements and pleaded guilty to participating in the campaign contribution scheme. Encinas and Chase, who had been charged as co-conspirators in a separate indictment, both also pleaded guilty to participating in the campaign contribution scheme.
Azano and Singh were charged in count one of the Indictment with conspiracy to violate the Federal Election Campaign Act (FECA),
and
A jury found Appellants guilty on all the counts with which they were charged. The
While Azano’s case was pending appeal, the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019), which clarified the law with respect to the mens rea of the status element of illegal firearm possession under
ANALYSIS
Appellants raise a number of claims contesting their convictions. We address each in turn.
I
Appellants first argue that
We first consider the genesis of
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,
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 . . .
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
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,
B
We next consider Appellants’ First Amendment challenge. The district court determined
“[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 federal candidates and a candidate running for the New York state senate. 800 F. Supp. 2d at 285. Thus, we agree with the district court that we are bound by the Supreme Court’s summary affirmance in Bluman.
II
The penalty provision applying to violations of
(1)(A) Any person who knowingly and willfully commits a violation of any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure—
(i) aggregating $25,000 or more during a calendar year shall be fined under Title 18, or imprisoned for not more than 5 years, or both . . .
“We review the formulation of jury instructions for abuse of discretion, but review de novo whether those instructions correctly state the elements of the offense and adequately cover the defendant’s theory
A
In its jury instructions covering Azano’s principal offense, the district court stated the intent element for
Fourth, defendant acted knowingly and willfully.
. . .
An act is done willfully if the defendant acted with knowledge that some part of his course of conduct was unlawful and with the intent to do something the law forbids, and again not by mistake or accident. In other words, a person acts “willfully” when he acts with a bad purpose to disobey or disregard the law.
It is not necessary for the government to prove that the defendant was aware of the specific provision of the law that he is charged with violating. Rather, it is sufficient for the defendant to act knowing that his conduct is unlawful, even if he does not know precisely which law or regulation makes it so.
Azano objected to this instruction, and proposed instead the jury be told that “in order to find that a defendant knowingly and willfully committed the crime charged in this count, you must find that he knew his actions violated the prohibition on foreign national contributions at the time he performed them.” Similarly, the jury instruction for Singh’s charge required only “knowledge that some part of his course of conduct was unlawful,” not that he knew specifically of the prohibition on foreign national contributions.4
“The word ‘willfully’ is sometimes said to be ‘a word of many meanings’ whose construction is often dependent on the context in which it appears.” Bryan v. United States, 524 U.S. 184, 191 (1998). There are two primary interpretations of “willfully” in the criminal context. Generally, “to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowledge that his conduct was unlawful.’” Id. at 191–92 (quoting Ratzlaf, 510 U.S. at 137). Alternatively, a willful violation may require proof that the defendant knows the specific legal prohibition or law that his conduct violates. See, e.g., Ratzlaf, 510 U.S. at 149. In Ratzlaf, a case
involving domestic financial transactions, the Court held that “willfulness” required the Government to prove that the defendant knew “not only of the bank’s duty to report cash transactions in excess of $10,000, but also of his duty not to avoid triggering such a report.” Id. at 146–47. In other words, the Government had to show that the defendant knew the precise prohibition at issue. Similarly, several tax statutes require proof that the defendant was aware of the provision she is charged with violating. See, e.g., Cheek v. United States, 498 U.S. 192, 201 (1991); United States v. DeTar, 832 F.2d 1110, 1114 (9th Cir. 1987). Cases requiring this heightened standard “involved highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct.” Bryan, 524 U.S. at 194.
In contrast,
Azano next points to United States v. Goland, 959 F.2d 1449 (9th Cir. 1992), which involved a jury instruction using the heightened Ratzlaf standard to define “willfully” in
Azano also cites language in the district court’s opinion in Bluman for the proposition that “seeking criminal penalties for violations of [
Instead, we find persuasive the analysis of a sister circuit that addressed whether the defendants acted “knowingly and willfully” pursuant to
Nor does the rule of lenity require that we interpret “willfully” to require a heightened standard. While “ambiguity concerning the ambit of criminal statutes
Azano’s related argument that a heightened specific intent standard properly applied to the conspiracy charge fails for the same reasons. Because it appropriately applied the Bryan standard, the district court did not abuse its discretion in stating the mens rea requirement for counts one or three. Moreover, the evidence proffered at trial indicated that Appellants took steps to conceal their actions, which suggests that they possessed knowledge that their actions were unlawful, not that they unwittingly engaged in criminal conduct.
B
As to the charge that Singh aided and abetted Azano’s unlawful donations, the district court’s jury instruction stated:
The evidence must show beyond a reasonable doubt that the defendant acted with the knowledge and intention of helping [Azano] to commit the crime of making donations and contributions by a foreign national aggregating at least $25,000 in calendar year 2012, in violation of
Title 2, United States Code, Sections 441e(a)(1)(A) and437g(d)(1)(A) .
Singh objected and proposed, in part, that the jury be told that “the government must prove . . . beyond a reasonable doubt . . . that Ravneet Singh knew that Mr. Azano was not a United States citizen or legal permanent resident.” Singh argues that the district court’s failure to include the material element that he knew Azano lacked immigration status constitutes reversible error.
The Government agrees that Singh’s knowledge of Azano’s immigration status was a material element of the charged crime, but argues that the element was included within the district court’s broader instructions. That Singh was charged with aiding and abetting the making of donations by a foreign national implies that Singh must know that Azano was a foreign national. The Government also points to various places in the record where the parties noted this requirement. For example, the prosecutor stated, “We have to prove that the defendant knew that [Azano] was a foreign national.”
We agree with the Government. “The jury must be instructed as to the defense theory of the case, but the exact language proposed by the defendant need not be used, and it is not error to refuse a proposed instruction so long as the other instructions in their entirety cover that theory.” United States v. Kenny, 645 F.2d 1323, 1337 (9th Cir. 1981). Although the district court could have properly included an express instruction regarding Singh’s knowledge of Azano’s immigration status, the instructions, as a whole, adequately covered that element. The instructions stated, “The evidence must show beyond a reasonable doubt that [Singh] acted with the knowledge and intention of helping [Azano] to commit the crime of making
The arguments and evidence presented at trial further clarified this requirement. Singh’s primary defense was that he did not know Azano’s immigration status. Defense counsel stated in his closing argument, “The government has absolutely failed to prove beyond a reasonable doubt that Ravi Singh knew that Mr. Azano was not a citizen nor a green card holder and therefore was ineligible to do anything.” In response to this theory, the Government presented ample evidence of Singh’s knowledge. First, Singh’s relationship with Azano started with services relating to the Mexican presidential election in 2011 in connection with which he traveled to Mexico with Azano. The Appellants’ relationship continued thereafter, and Singh performed other work for Azano’s Mexican businesses. Next, Singh took clear steps to conceal Azano’s involvement in the campaigns. In emails, Singh admonished coworkers for improper use of code names, and refused to communicate about relevant topics directly due to the “legal ram[i]fications.”
In sum, we find that the jury instructions sufficiently covered the required mental state, as required by
III
Appellants contest their convictions under counts five through thirty-seven, arguing there was insufficient evidence to satisfy the material elements of
[w]hoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . shall be fined under this title, imprisoned not more than 20 years, or both.
The Government offered two theories on the falsification of records charges. For counts thirty-two and thirty-seven, the Government argued that Singh failed to disclose that Azano paid for Singh’s social media services rendered to both the Dumanis and Filner campaigns. Dumanis’s campaign manager, Jennifer Tierney, discussed payment options with Singh, who
A
Appellants first argue that the Government failed to introduce evidence to satisfy any of the material elements of
1. Actus Reus
The Government relied on Singh’s omission to satisfy
Two district courts have provided more extensive analysis on the issue and concluded that an omission constitutes a “false entry” within the meaning of
We find the district courts’ analyses convincing. It is difficult to differentiate between the culpability of one who intentionally omits information, and one who
Singh observes that the text of
Singh further argues that even if he omitted the information that Azano was paying him for the social media services he provided to the campaigns, he had no duty to disclose that information. He claims that since he played no role in preparing the campaign disclosure forms, his connection to any actions taken was particularly tenuous. This argument has merit. In most of the cases where courts affirmed
However, Singh was not simply convicted under
Under this theory of liability, the actus reus element merges with the mens rea
Proceeding under this theory is in line with Congress’s intention that
Finally, [section 1519] could also be used to prosecute a person who actually destroys the records himself in addition to one who persuades another to do so, ending yet another technical distinction which burdens successful prosecution of wrongdoers.
2. Causation Under Section 2(b)
“When a defendant’s culpability is based, not on his own communications with the federal agency, but on information furnished to the agency by an intermediary, the element of intent takes on a different cast than it does if a direct violation of [the underlying statute] is asserted.” Curran, 20 F.3d at 567. By proceeding pursuant to
The Government presented sufficient evidence for a jury to find that Singh willfully caused the Dumanis campaign to file falsified reports, and so we affirm Appellants’ convictions under count thirty-two. The Government established that Singh had a long history of providing his professional services in connection with political campaigns and elections, that he had operated ElectionMall since 2003, and had even run for a political office himself at an earlier time. Tierney testified that she warned Singh “[t]hat no one could pay someone to volunteer in a campaign,” and “[t]hat if any payments were made, those would have to be reported to the campaign, and we would have to report them on a [Form] 460.” Knowing these reporting requirements, Singh still offered to “voluntarily help” and concealed Azano’s payments by using code names and invoicing through separate companies. The jury reasonably could have found that Singh knew campaign disclosure reports required disclosing in-kind contributions, and that he withheld his funding to prevent such disclosures.5
3. Investigation
Singh also argues that the Government did not show that his actions were taken with “the intent to impede, obstruct, or influence the investigation or proper administration of any matter.”
On its face, the statute is particularly broad regarding the investigation element. One need not impede, obstruct, or influence an actual ongoing investigation; instead, the mere fact that the defendant contemplates an investigation satisfies this element. United States v. Gonzalez, 906 F.3d 784, 793–96 (9th Cir. 2018). Congress intentionally relaxed this requirement to allow the statute to reach more broadly. See
Reading the section broadly, the Government presented sufficient evidence to prove this element. The Government established that Singh had a long history of involvement in campaigns and elections, and that he was warned about the reporting requirements in the San Diego mayoralty campaigns. Still, Singh stated he would “voluntarily help” and did not disclose any payments by Azano. Singh limited any paper trail by using code names and admonishing those discussing Azano’s payments in emails. From this evidence, a jury could reasonably infer that Singh contemplated an investigation due to unlawful activity and intended to direct that investigation away from himself.
4. Jurisdiction
Lastly, Singh argues that any investigation of his conduct is not within the jurisdiction of the United States, because it involved a local campaign, and the falsified campaign disclosure forms violated
Singh misconstrues the focus of the investigation. We agree that violations of state campaign disclosure laws do not fall within the jurisdiction of the United States; however, the Federal Bureau of Investigation (FBI) has jurisdiction to investigate violations of FECA. This extends to state and local elections insofar as the FBI investigates donations by a foreign national. Here, the FBI did investigate the campaigns, due to Azano’s foreign nationality. That the reports were filed pursuant to state law has no bearing since they were sought in connection with the investigation of a federal crime.
Singh cites United States v. Facchini, 874 F.2d 638 (9th Cir. 1989) (en banc), and United States v. Ford, 639 F.3d 718 (6th Cir. 2011), to support his argument. Both cases involved prosecutions pursuant to
B
Azano also argues there was insufficient evidence to affirm his remaining convictions under counts five through thirty-one and thirty-three through thirty-six. We conclude that the Government presented sufficient evidence to show that Azano willfully caused the campaigns to make false entries on campaign disclosure forms with the intent of obstructing a potential investigation. Chase testified that Azano asked him to recruit straw donors for the Dumanis campaign and make a large donation to a Filner PAC, and promised to reimburse him for those donations. Azano also tasked his employee, Jason Wolter, and his own son, Hester, to “recruit . . . friends . . . to write a $500 check to the campaign.” The Government presented a ledger seized from Azano’s home that tallied all straw donations obtained. Azano made no direct donations, but his U.S.-based company, AIRSAM, made a $100,000 donation to fund a Dumanis PAC. A local newspaper article traced the money back to Azano, questioning whether the donation was legal due to Azano’s immigration status. The Government noted that, subsequently, Azano never made another donation through AIRSAM. All of the evidence presented allowed a rational trier of fact to find that Azano knowingly caused the campaigns to make false entries on campaign disclosure forms with the intent to obstruct a potential investigation.
Azano additionally argues that there was insufficient evidence to convict him of count thirty-three, which involved a $100,000 donation from AIRSAM to a Dumanis PAC. While Azano correctly notes that AIRSAM may legally donate to a PAC, see Citizens United v. FEC, 558 U.S. 310, 372 (2010), the Government proceeded under the theory that AIRSAM was a straw donor for Azano, who had no constitutional
In summation, we hold that an omission satisfies the actus reus element for
IV
Singh next appeals his conviction for conspiracy, charged in count one. First, he argues that the court failed “to instruct the jury that evidence of more than one conspiracy was presented to the jury.” We review de novo whether the jury instructions adequately cover the defendant’s theory of the case. Liew, 856 F.3d at 595–96.
We find that the following jury instruction adequately covered Singh’s multiple conspiracy theory:
[The jury] must decide whether the conspiracy charged in Count 1 of the Indictment existed, and, if it did, who at least some of its members were. If you find that the conspiracy charged did not exist for the charged Count, then you must return a not guilty verdict for that Count, even though you may find that some other conspiracy existed. Similarly, if you find that any defendant was not a member of the charged conspiracy, then you must find that defendant not guilty for that Count, even though that defendant may have been a member of some other conspiracy.
Thus, the jury had to find that Singh participated in the charged conspiracy; if not, “even though [Singh] may have been a member of some other conspiracy,” the jury was instructed to return a not guilty verdict. It was the jury that had to decide whether a conspiracy or multiple conspiracies existed, and the court’s jury instruction adequately presented this theory. See United States v. Loya, 807 F.2d 1483, 1492–93 (9th Cir. 1987).
Singh also argues that there was insufficient evidence of a single conspiracy to sustain his conviction. Instead, he claims that the Government proved only a “rimless conspiracy” under which his conviction could not stand. “Whether a single conspiracy has been proved is a question of the sufficiency of the evidence,” and we review such claims de novo. United States v. Fernandez, 388 F.3d 1199, 1226 (9th Cir. 2004), as amended, 425 F.3d 1248 (9th Cir. 2005).
To determine whether a single conspiracy or multiple conspiracies have been proven, we employ the following test:
A single conspiracy can only be demonstrated by proof that an overall agreement
existed among the conspirators. Furthermore, the evidence must show that each defendant knew, or had reason to know, that his benefits were probably dependent upon the success of the entire operation. Typically, the inference of an overall agreement is drawn from proof of a single objective . . . or from proof that the key participants and the method of operation remained constant throughout the conspiracy. The inference that a defendant had reason to believe that his benefits were dependent upon the success of the entire venture may be drawn from proof that the coconspirators knew of each other’s participation or actually benefitted from the activities of his coconspirators.
Id. (quoting United States v. Duran, 189 F.3d 1071, 1080 (9th Cir. 1999)). “[I]f the indictment alleges a single conspiracy, but the evidence at trial establishes only that there were multiple unrelated conspiracies, there is insufficient evidence to support the conviction on the crime charged, and the affected conviction must be reversed.” Id. at 1226–27. Nonetheless, “[a] single conspiracy may involve several subagreements or subgroups of conspirators.” United States v. Bibbero, 749 F.2d 581, 587 (9th Cir. 1984).
The Indictment alleged a single conspiracy. Singh argues that his only objective was to make money for his social media business, not to influence elections. Yet the jury could reasonably have concluded that Singh’s goal was broader. In an email from Dumanis to her campaign staff, she reported that she “got a call, conference call, from Ernie Encinas, Susumo Azano, and Ravi Singh. . . [Singh] apparently flew to SD just to talk with Mr. A who wanted him to talk to me!” In an email between Singh and Encinas, Encinas mentioned, “[Azano] was upset about the money he said he sent you to form a PAC and do the social media.” These interactions with Azano suggested that Singh’s role was not limited to his social media business, but included generally assisting Azano with the campaigns.
Furthermore, the key participants and method of operations remained the same throughout the period of the conspiracy. All co-defendants acted from at least December 2011 to November 2012. Singh spoke with Azano and then flew to San Diego to meet with the Dumanis campaign at the end of December. At the same time, Chase and Hester secured straw donors to contribute to Dumanis‘s campaign. Just as Chase, Hester, and Encinas concealed Azano‘s donations to the campaigns, so too Singh concealed Azano‘s patronage. Once Dumanis lost the primary, all the participants proceeded to support the Filner campaign in much the same way. The jury could reasonably have inferred an overall agreement from the proof of a single goal, or from proof that these key participants and their general operations remained constant throughout the conspiracy.
It might be a closer question whether Singh knew, or had reason to know, about the other co-conspirators’ participation. The Government provided sufficient evidence that Singh knew Azano and Encinas and the role they played in coordinating efforts for the San Diego mayoral race, but there is no direct evidence that Singh knew of the subgroup that obtained straw donors. However, the Government did not need to show that Singh “knew all of the purposes of and all of the participants in the conspiracy.” United States v. Kearney, 560 F.2d 1358, 1362 (9th Cir. 1977). Instead, while there may not have been proof of direct knowledge of Hester‘s, Cortes‘s, or Chase‘s contributions, there was proof that Singh benefitted
V
Azano was also convicted of unlawfully possessing a firearm as an alien in violation of
(g) It shall be unlawful for any person—
. . .
(5) who, being an alien—
. . .
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in
section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)) );. . .
to . . . possess in or affecting commerce, any firearm or ammunition. . . .
Subsection “(g)(5)(B) . . . do[es] not apply to any alien who has been lawfully admitted to the United States under a nonimmigrant visa, if that alien is . . . admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States.”
The State Department admitted Azano to the United States through several B1/B2 visas “issued to someone who wishes to visit the United States for personal pleasure and limited business.” A nonimmigrant visitor for business is granted a B1 visa, while a visitor for pleasure is granted a B2 visa.
Azano does not dispute that he was admitted under a nonimmigrant visa, but makes three arguments challenging his conviction under
A.
Azano‘s Second Amendment challenge comes on the heels of our recent decision in United States v. Torres, where we held that
Even though we address a lawfully admitted, nonimmigrant alien in this case, the same ambiguity exists. Some courts have read the historical right as one afforded only to citizens or those involved in the political community, while others have focused instead on an individual‘s connection to the United States. Nonimmigrant aliens, like those unlawfully present, are neither citizens nor members of the political community. By definition, “[a]n alien is classifiable as a nonimmigrant visitor for business (B-1) or pleasure (B-2) if . . . [t]he alien intends to leave the United States at the end of the temporary stay.”
In Torres, we determined that the appropriate level of scrutiny to apply to a Second Amendment challenge of
The government‘s interest in this case is straightforward. The government‘s interest is the same as in Torres—crime control and maintaining public safety. This objective has repeatedly been recognized as important within our circuit and elsewhere. See, e.g., Heller, 554 U.S. at 626-27 (recognizing that regulations on gun possession or ownership may be lawful due to the government‘s interest in public safety); Mahoney v. Sessions, 871 F.3d 873, 882 (9th Cir. 2017); United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir. 2010).
Further, the statute reasonably serves this important interest. It carves out exceptions for visa holders who are less likely to threaten public safety.
In summary,
B.
We turn next to Azano‘s claim that his possession of a gun fell within the “pleasure” designation in
Azano first argues that all B2 nonimmigrant visa holders should be permitted to own firearms, as their very presence is an “activit[y] of a recreational character.”
Azano‘s next position—that firearm possession for “sporting purposes” is a pleasure activity—necessarily implies that all B2 visa holders fall under
Further, the record illustrates just how overinclusive Azano‘s proffered definition would be. Azano has never claimed that he engaged in hunting activities for pleasure or used the firearm for sporting purposes.8 Instead, he offered evidence suggesting that he possessed the gun solely for protection. Concluding that firearm ownership automatically qualifies as a “pleasure” activity or “sporting purpose” would thus be difficult in the light of the facts of this case alone.
Azano‘s void-for-vagueness claim also fails. A statute is unconstitutionally vague if it “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits.” SEC v. Gemstar-TV Guide Int‘l, Inc., 401 F.3d 1031, 1048 (9th Cir. 2005) (en banc) (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)).
[I]f you are someone who has come to the United States for lawful hunting or sporting hunts . . . that person is exempt. That person may purchase a gun while here for that purpose.
144 Cong. Rec. S8641 (daily ed. July 21, 1998) (statement of Sen. Durbin).
B1/B2 nonimmigrant visa holders do not automatically qualify for
We turn next to Azano‘s claim that, in light of the Supreme Court‘s decision in Rehaif, we must reverse his conviction for unlawful possession of a firearm because the district court failed to properly instruct the jury on the mens rea of the status element of
1. Mens Rea After Rehaif
Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.
In Rehaif, the Supreme Court analyzed
Azano contends that Rehaif requires the Government to prove he knew not only his status, but also that he knew his status prohibited him from owning a firearm. But this interpretation is not supported by Rehaif, which held only that “in a prosecution under
In criminal law, “knowing” describes a lower level of scienter than “willful.” In Bryan v. United States, 524 U.S. 184 (1998), the Supreme Court distinguished between willful and knowing mens rea requirements. “[W]hen used in the criminal context, a ‘willful’ act is one undertaken with a ‘bad purpose.’ In other words, in order to establish a ‘willful’ violation of a statute, ‘the Government must prove that the defendant acted with knowledge that his conduct was unlawful.‘” Bryan, 524 U.S. at 191-92 (citations omitted). However, “the term ‘knowingly’ does not necessarily have any reference to a culpable state of mind or to knowledge of the law. . . . ‘[T]he knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law.‘” Id. at 192 (citation omitted). Therefore, “unless the text of the statute dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.” Id. at 193 (footnote omitted).
Here, the statute‘s text does not dictate a different result. Based on the plain language of
2. Plain Error Review of Azano‘s Conviction
Under
The Government concedes Azano establishes the first two prongs of the plain error inquiry: the district court erred by not requiring the Government to prove Azano‘s knowledge of his status as being admitted on a nonimmigrant visa, and that error is clear following Rehaif.
To meet the third prong of the plain error inquiry, however, the error “must have affected the outcome of the District Court proceedings.” United States v. Leos-Maldonado, 302 F.3d 1061, 1064 (9th Cir. 2002) (internal quotation marks and citation omitted). And under the fourth prong, Azano must show that the district court‘s error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Rosales-Mireles, 138 S. Ct. at 1905. But because the evidence on the omitted scienter-of-status element was overwhelming and uncontested at his two trials, we conclude there is no reasonable probability “the jury‘s verdict would have been different had the jury been properly instructed.” See Teague, 722 F.3d at 1192 (internal quotation marks and citations omitted). Therefore, Azano cannot show that the error affected his substantial
In United States v. Benamor, 937 F.3d 1182 (9th Cir. 2019), we addressed plain error review of a conviction under
In United States v. Tuan Ngoc Luong, 965 F.3d 973 (9th Cir. 2020), we similarly affirmed the conviction of a felon-in-possession on remand after Rehaif because “the error did not affect Luong‘s substantial rights, nor the fairness, integrity, or public reputation of [his] trial.” Id. at 989 (citing Benamor, 937 F.3d at 1189) (additional citation omitted). In that case, we noted “Luong had at least six prior felony convictions at the time he possessed the charged firearm, four of which resulted in prison sentences exceeding one year.” Id. Thus, while clear error occurred, we affirmed his conviction because “even if the district court had instructed the jury on the knowledge-of-status element, there is no reasonable probability that the jury would have reached a different verdict on [the firearm] count . . . .” Id. (citing Rehaif, 139 S. Ct. at 2198).
The Supreme Court‘s decision in United States v. Cotton, 535 U.S. 625 (2002), while decided before Rehaif, is instructive regarding plain error review. There, the Supreme Court held that the omission of the drug quantity from the indictment, a necessary element under Apprendi v. New Jersey, 530 U.S. 466 (2000), “did not seriously affect the fairness, integrity, or public reputation of judicial proceedings” because the evidence of the drug quantity element was “overwhelming” and “essentially uncontroverted.” 535 U.S. 625, 632-33 (2002) (citation omitted). Here too is the evidence “overwhelming” and “essentially uncontroverted” that Azano knew his status of being admitted to the United States under a nonimmigrant visa.
During his first trial, Special Agent Lauritz Austensen of the Diplomatic Security Service testified that he searched the State Department‘s Consular Consolidated Database (CCD) “for [v]isa information for . . . Jose Susumo Azano Matsura.” Agent Austensen recounted that he located several B1/B2 visas issued to Azano, and that Azano held no other visa types. Agent Austensen further testified about the application for a B1/B2 visa that Azano submitted to the Department of State in January 2010. As Agent Austensen testified, “[w]hen someone applies for a visa, they‘re required to furnish all of this information themselves or somebody furnishes it for them but then they certify it is true and correct.” According to his application, Azano furnished the information himself.
In the second trial, this testimony was largely repeated by Consular Officer Beth Chesterman. Officer Chesterman testified that she queried CCD and located a B1/B2 nonimmigrant visa application for Azano. Those records were admitted as Exhibit 8. During her testimony, Officer Chesterman explained the portion of Exhibit 8 that enumerated each time Azano used his
Azano‘s extensive travel to and from the United States using his B1/B2 visa was also corroborated by uncontroverted evidence in both trials. Testimony revealed that Azano regularly traveled internationally, and at times, weekly to Mexico City. From November 2011 to November 2013, he used his B1/B2 visa to enter the United States approximately 29 times.
During both trials, Immigration Services Officer Concepcion Flores also testified. At the first trial, she authenticated the nameplate page of Azano‘s Mexican passport. Officer Flores testified that based on her research in the Department of State Central Index System, Azano was not a legal permanent resident of the United States and had never applied to be and was not a naturalized U.S. citizen. None of this testimony was contested. We therefore conclude, as we did before the Supreme Court‘s remand, that Azano‘s status as a nonimmigrant visa holder was uncontested. Azano points to nothing to change our conclusion in this regard today.
Having heard this evidence, even if properly instructed on the knowledge-of-status element, there is no reasonable probability that the jury would have reached a different verdict. See Cotton, 535 U.S. at 633 (cataloging evidence introduced at trial and concluding “[s]urely the grand jury, having found that the conspiracy existed, would have also found that the conspiracy involved at least 50 grams of cocaine base“). Therefore, because Azano fails to offer a plausible basis for concluding that an error-free retrial might end more favorably, he cannot show that the error affected his substantial rights or undermined the integrity of the proceedings in a way that warrants correction.10
3. Plain Error Review of Indictment
A claim of defective indictment raised for the first time on appeal is also reviewed for plain error. Leos-Maldonado, 302 F.3d at 1064.
It is undisputed that the indictment did not charge the requisite knowledge of status. However, for the reasons set forth above, Azano cannot meet the third and fourth prongs of the plain error test. For those same reasons, there is no reasonable probability that, but for the omission in the indictment, the jury would have reached a different verdict on the firearm charge. Therefore, we decline to dismiss the firearm charge.
VI
Finally, Appellants seek our review of the district court‘s denial of several trial motions. First, Azano argues that the district court abused its discretion in denying his motion for a new trial based on alleged ineffective assistance of his trial counsel, Michael Wynne. Singh also argues that the district court abused its discretion when denying his motion to sever the trial from co-defendants Cortes and Hester.
“[W]hen a claim of ineffective assistance of counsel is first raised in the district court prior to the judgment of conviction, the district court may, and at times should, consider the claim at that point in the proceeding.” United States v. Steele, 733 F.3d 894, 897 (9th Cir. 2013) (quoting United States v. Brown, 623 F.3d 104, 113 (2d Cir. 2010)). However, the decision of whether to review the claim “is best left to the discretion of the district court.” Id. “We are mindful that district courts face competing considerations in deciding whether it is appropriate to inquire into the merits of [ineffective assistance] claims prior to judgment, including . . . the . . . disruption of the proceedings.” Id. at 898 (alterations in original) (quoting Brown, 623 F.3d at 113). Such considerations include “the existence of evidence already in the record indicating ineffective assistance of counsel,” “the scope of the evidentiary hearing that would be required to fully decide the claim,” and the need to relieve trial counsel, appoint new counsel, or consider the availability of post-conviction counsel if the claim is not heard until then. Id.
In denying Azano‘s motion for a new trial, the district court explained that “the trial record here is not sufficiently developed to enable the [c]ourt to resolve the multiple and varied ineffective assistance of counsel claims being asserted by Mr. Azano . . . . Mr. Azano sets forth, by my count, no less than a dozen separate grounds in support of that claim, each of which would have to be considered and evaluated individually.” The court agreed with the Government that there would be “a long delay in resolving the case, and . . . [it] would run afoul of this [c]ourt‘s duty to promote the interest of justice and judicial economy.”
The district court did not abuse its discretion. We agree with the court that there are a number of claims at issue even though Azano frames his motion as a single ineffective assistance of counsel claim. We observe, at a minimum, ineffective assistance of counsel claims for failure to proffer a defense, failure to introduce exculpatory evidence, and failure to adequately investigate. To address such claims, the court would have needed to examine counsel‘s reasons and motivations for taking and not taking certain actions, which would have resulted in a prolonged evidentiary hearing. Additionally, Azano‘s ability to retain post-conviction representation relieves concerns that the claim may not receive due consideration in a collateral proceeding.
Other considerations weigh in Azano‘s favor. Azano appointed another attorney for post-trial motions, eliminating the district court‘s need “to relieve the defendant‘s attorney, or in any event, to appoint new counsel in order to properly adjudicate the merits of the claim.” Id. (quoting Brown, 623 F.3d at 113). Further, waiting for post-conviction relief may result in some prejudice to Azano by “weakening of memories and aging of evidence,” as well as time Azano will be incarcerated waiting for the claims to be heard. Id. at 897. Still, given the considerations weighing against Azano, we cannot say the district court abused its discretion.
Azano also requests that we review his ineffective assistance of counsel claim directly on appeal. Generally, we will not entertain ineffective assistance of counsel claims on direct appeal because the record is often undeveloped “as to what counsel did, why it was done, and what, if any, prejudice resulted.” United States v. Andrews, 75 F.3d 552, 557 (9th Cir. 1996) (quoting United States v. Rewald, 889 F.2d 836, 859 (9th Cir. 1989)). “This is so even if
B.
Singh argues that the district court abused its discretion in denying his motion to sever his trial from all defendants except Azano. However, “[i]t is well settled that the motion to sever ‘must be renewed at the close of evidence or it is waived.‘” United States v. Alvarez, 358 F.3d 1194, 1206 (9th Cir. 2004) (quoting United States v. Restrepo, 930 F.2d 705, 711 (9th Cir. 1991)). The record does not show that Singh‘s counsel renewed the motion, nor does Singh proffer any reason as to why such waiver should not apply. Accordingly, we find that Singh waived this argument.
Relatedly, Singh argues that the joint trial compromised his due process rights due to the “irresponsible actions of Azano‘s attorney.” Singh points us to People v. Estrada, 75 Cal. Rptr. 2d 17 (Cal. Ct. App. 1998), as authority for such a claim. In Estrada, the state court found that co-defendant‘s counsel improperly suggested that the defendant was more culpable than his client. Id. at 23. Even if we were to recognize that such conduct gives rise to a due process violation, the record does not show that Azano‘s counsel made any similar suggestion here.
CONCLUSION
We reverse Azano‘s and Singh‘s convictions under count thirty-seven for falsification of campaign records, finding the evidence insufficient to support all material elements. We affirm all other convictions, including Azano‘s conviction for unlawfully possessing a firearm. We vacate Azano‘s and Singh‘s sentences and remand for re-sentencing in accordance with this opinion.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED FOR RE-SENTENCING.