By Sandra Hong, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday upheld, for a second time, a gun-possession conviction of a Mexican businessman who illegally contributed nearly $600,000 to the 2012 San Diego mayoral race.
The panel, comprised of Circuit Judges Milan D. Smith Jr., Paul J. Watford, and Andrew D. Hurwitz, withdrew its original opinion filed in March 2019 and filed a new one after the U.S. Supreme Court remanded the case in light of its decision in a case months later that addressed the mens rea element of illegal firearms possession under 18 U.S.C. §922(g).
A jury in the Southern District of California in 2016 found Jose Susumo Azano Matsura, a nonimmigrant visa holder who maintained a family home in San Diego, guilty of unlawfully possessing a firearm under §922(g), along with 36 counts of election campaign violations. He was denominated in the opinion “Azano.”
Section 922(g) lists categories of persons who may not lawfully possess firearms, which includes those “admitted to the United States under a nonimmigrant visa.”
Yesterday’s opinion reiterates the panel’s original conclusions, even after considering the Supreme Court’s decision in Rehaif v. United States, which held that the government must prove a defendant knew he fell into one of the prohibited categories identified in §922(g).
Azano contended his indictment should be reversed for failing to properly instruct the jury on the mens rea element.
Smith, who wrote both opinions, determined that while District Court Judge Michael M. Anello erred in light of the Supreme Court’s subsequent ruling in Rehaif, it was not ground for reversal.
“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,” Smith wrote, adding:
“The evidence on the omitted mens rea element—that Azano knew he was ‘admitted to the United State 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.’ ”
Anello sentenced Azano in 2017 to three years in prison and ordered payment of a fine of $560,955. He also sentenced Ravneet Singh, an elections campaign consultant who helped funnel funds from Azano to local San Diego mayoral candidates, 15 months in prison and ordered a $10,000 fine.
Azano and Singh were found to have conspired to contribute foreign funds to the 2012 mayoral campaigns then-San Diego District Attorney Bonnie Dumanis, who lost in the primary, and Bob Filner, who prevailed in the general election. Azano sought to buy political influence to fast-track his vision of developing San Diego’s waterfront and turning the city into “the Miami Beach of the west coast.”
Yesterday’s opinion affirms both Azano’s and Singh’s convictions, including Azano’s conviction for unlawfully possessing a firearm. The opinion also maintains a reversal of a conviction of falsification of campaign records, finding there was insufficient evidence.
A remand was ordered for resentencing.
The case is United States v. Singh, 17-50337.
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