Petition for Writ of Certiorari — Ravneet Singh, Petitioner v. United States

Supreme Court briefOct 28, 2019

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IN THE

Supreme Court of the United States

RAVNEET SINGH

Petitioner,

UNITED STATES OF AMERICA

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

TODD W. BURNS

BURNS & COHAN,

ATTORNEYS AT LAW

1350 Columbia Street,

Suite 600 San Diego,

California 92101

(619) 236-024

Co-Counsel for Ravneet

Singh

HAROLD J. KRENT

IIT CHICAGO-KENT

COLLEGE OF LAW

565 West Adams Street

Chicago, Illinois 60661

(312) 906-5010

hkrent@kentlaw.iit.edu

Counsel of record for

Ravneet Singh

QUESTIONS PRESENTED

Whether, upon invalidating one of two

alternative theories of liability presented to a jury, the

reviewing court should ask if there is “sufficient

evidence” to justify predicating liability on the

remaining theory of liability; a “reasonable

probability” that the jury so found; or “evidence beyond

a reasonable doubt” that the jury so found?

2. Whether Congress, pursuant to its authority

over foreign affairs and immigration, can dictate to

states how to structure their own political processes?

RULE 29.6 STATEMENT

The petitioner has no parent company, and there

are no publicly held companies that hold any stock of

petitioner.

STATEMENT OF RELATED CASE

Jose Susomo Azano Matsura was tried with

petitioner Singh, No. CR 14-388 mma, and the district

court entered judgment against him on November 9,

2017. The Ninth Circuit subsequently consolidated

the two appeals (No. 17-50387) for the purpose of oral

argument. Azano is filing a separate petition to this

Court based on an unrelated issue.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED .............................. i

TABLE OF AUTHORITIES ..............................v

OPINION BELOW............................................ 1

JURISDICTION................................................ 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED............................... 1

STATEMENT OF THE CASE.......................... 1

REASONS FOR GRANTING THE WRIT ....... 3

CERTIORARI IS APPROPRIATE

TO RESOLVE THE SPLIT IN THE

CIRCUITS AS TO THE APPROPRIATE

TEST REQUIRED BY HEDGPETH V.

PULIDO TO DETERMINE WHEN,

AFTER INVALIDATING ONE OF

ALTERNATIVE

THEORIES

LIABILITY PRESENTED TO THE

JURY,

REVIEWING

COURT

SHOULD

HOLD

THE

ERROR

HARMLESS ........................................... 4

II.

CERTIORARI IS APPROPRIATE

AS WELL TO PRESERVE THE

FEDERALISM TENETS REINFORCED

IN OREGON V. MITCHELL ............... 10

CONCLUSION ............................................... 16

APPENDIX

Opinion of the United States Court of Appeals

for the Ninth Circuit, May 16, 2019...... App. I-1

Order of the United States for the Ninth

Circuit Denying Petition for Rehearing and

Petition for Rehearing En Banc, July 30,

2019 .................................................... App. II-1

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS

Sixth Amendment ............................................. 1, 8, 9

CASES

Arizona v. InterTribal Council of Ariz.,

570 U.S. 1 (2013) ................................................. 13

Babb v. Lozowsky,

719 F.3d 1019 (9th Cir. 2013) ................................ 5

Bereano v. United States,

706 F.3d 568 (4th Cir. 2013) .......................... 6, 7, 8

Bluman v. FEC,

565 U.S. 1104 (2012) ........................................... 14

m v. Wixon,

326 U.S. 135 (1945) ............................................. 13

Gregory v. Ashcroft,

501 U.S. 452 (1991) ....................................... 12, 13

Hedgpeth v. Pulido,

555 U.S. 57 (2008) ..................................... 3, 4, 6, 9

James v. Bowman,

190 U.S. 127 (1903) ............................................. 11

Oregon v. Mitchell,

400 U.S. 112 (1970) ................................... 3, 10, 11

Pope v. Williams, 193 U.S. 621 (1904) ................... 12

Sorich v. United States,

709 F.3d 670 (7th Cir. 2013) .................................. 6

State v. Malachi,

821 S.E.2d 407 (N.C. 2018) ............................... 6, 9

Sugarman v. Dougall, 4

13 U.S. 634 (1973) ............................................... 12

Sullivan v. Louisiana,

508 U.S. 275 (1993) ............................................... 9

Taylor v. Beckham,

178 U.S. 548 (1900) ............................................. 13

United States v. Andrews,

681 F.3d 509 (3rd Cir. 2012) .................................. 8

United States v. McKye,

734 F.3d 1104 (10th Cir. 2013) ...................... 6, 7, 8

United States v. Raymond,

139 S. Ct. 2369 (2019) ........................................... 8

United States v. Reese,

62 U.S. 214 (1876) ............................................... 11

United States v. Skilling,

638 F.3d 480 (5th Cir. 2011) .................................. 7

United States v. Vazquez-Hernandez,

849 F.3d 1219 (9th Cir. 2017) ................................ 5

Verdugo v. Urquidez,

494 U.S. 259 (1990) ............................................. 13

STATUTES

18 U.S.C. 1519................................................... 1, 4, 7

18 U.S.C. 2(b) ............................................................ 4

52 U.S.C. 30121 ............................................. 2, 12, 14

Calif. Gov. Code 85320(b)-(c) .................................. 14

vii

OTHER WORKS CITED

Erika A. Khalek, Searching for a Harmless

Alternative: Applying the Harmless Error

Standard to Alternative Theory Jury

Instructions, 83 Fordham L. Rev. 295

(2014) ..................................................................... 8

Federalist No. 59 ................................................. 12

http://www.ncsl.org/research/elections-andcampaigns/non-resident-and-non-citizenvoting.aspx ........................................................... 10

https://bppj.berkeley.edu/2019/03/04/spring

-2019-journal-noncitizen-voting-rights-inthe-united-states/ ................................................ 10

Mass. Const. part II, chap. I, § 2, art. II ............. 11

Ronald Hayduk, Democracy For All:

Restoring Immigrant Voting Rights in the

United States (2006) ............................................ 11

PETITION FOR A WRIT OF CERTIORARI

OPINION BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit is available at 924 F.3d 1030 (9th

Cir. 2013) and is reproduced in the Appendix at App.

A. Petitioner filed a petition for rehearing en banc in

the Ninth Circuit which was denied by order issued

July 30, 2019 (App. B).

JURISDICTION

The decision and judgment of the United States

Court of Appeals for the Ninth Circuit were entered on

May 16, 2019. This Court’s jurisdiction is invoked

under 28 U.S.C. 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment provides in part that “[i]n

all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial.”

18 U.S.C. 1519 provides “Whoever 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 or any

case filed under title 11, or in relation to or

contemplation of any such matter or case, shall be

fined under this title, imprisoned not more than 20

years, or both.”

52 U.S.C. 30121 provides “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

(within the meaning of section 30104(f)(3) of this title);

or (2) a person to solicit, accept, or receive a

contribution or donation described in subparagraph

(A) or (B) of paragraph (1) from a foreign national.”

STATEMENT OF THE CASE

This case arises from the trial and conviction of

petitioner Ravneet Singh for aiding a San Diego

homeowner who is not a citizen contribute to two

candidates by providing social media services in

connection with the 2012 San Diego mayoral campaign

and for not disclosing such efforts to the candidates’

campaigns.

REASONS FOR GRANTING THE WRIT

1. This Court should grant the petition for a writ of

certiorari first to resolve the split in the circuits

following Hedgpeth v. Pulido, 555 U.S. 57 (2008), with

respect to application of the harmless error doctrine

after invalidation of one of alternative theories of

liability presented to the jury. The Ninth Circuit held

in this case that, as long as “sufficient evidence”

existed supporting the theory that was not

invalidated, harmless error existed. In contrast, other

circuits – albeit in different ways -- have required the

government to demonstrate instead that it is clear

“beyond a reasonable doubt” that the jury voted to

convict on the theory left standing.

2. This Court also should grant the petition to

preserve the fundamental tenets of federalism

embodied in Oregon v. Mitchell, 400 U.S. 112 (1970),

which held that Congress is without power to interfere

with the election machinery of the states.

I. CERTIORARI IS APPROPRIATE TO

RESOLVE THE SPLIT IN THE

CIRCUITS AS TO THE APPROPRIATE

TEST REQUIRED BY HEDGPETH V.

PULIDO TO DETERMINE WHEN,

AFTER INVALIDATING ONE OF

ALTERNATIVE

THEORIES

LIABILITY PRESENTED TO THE

JURY, A REVIEWING COURT SHOULD

HOLD THE ERROR HARMLESS

A. Split in the Circuits

This Court in Hedgpeth v. Pulido, 555 U.S. 57

(2008), held that, after invalidating one of alternative

theories of liability presented to the jury, a court

should apply harmless error review. The courts below

have articulated disparate tests as to what constitutes

harmless error review in that context.

The government below relied upon alternative

theories in pressing for conviction under the document

shredding statute, 18 U.S.C. 1519. First, it argued

that petitioner Singh’s failure to report his work on the

Dumanis and Filner mayoral campaigns was

tantamount to filing a false report and, alternatively,

that Singh “caused” the campaigns under 18 U.S.C.

2(b) to file inaccurate reports by not being more

forthcoming about the amount he was paid for his

work, and who was paying. There was no factual

dispute underlying the first theory, because Singh

never contended that he reported his efforts to the

campaigns, but rather argued that he had no duty to

do so. On the other hand, whether and to what extent

petitioner received money to work on the campaigns

was hotly contested.

The Ninth Circuit agreed (924 F.3d at 1050) with

petitioner that, in the absence of a duty to make a

report, his omission could not satisfy the actus reus of

the document shredding offense: “San Diego’s

Municipal Code . . . imposed the reporting requirement

on campaigns and candidates, not on individuals

‘volunteering’ or providing services to the

campaigns.” 924 F.3d at 1050. Nonetheless, the court

determined that there was “sufficient evidence” (924

F.3d at 1051) for the jury to conclude on the alternative

theory that Singh “caused” the Dumanis campaign,

but not the Filner campaign, to file a false report by

concealing how much he had been paid to work on the

campaign.

The Ninth Circuit has applied harmless error

similarly in prior cases. For instance, in Babb v.

Lozowsky, 719 F.3d 1019 (9th Cir. 2013), the court

noted that, even though there was “no way to be

absolutely certain what leads a juror to a particular

decision,” id. at 1033 n.9, the court was “reasonably

certain” from the evidence introduced at trial that the

jury voted to convict under the remaining theory of

liability. Id. at 1035. The Ninth Circuit articulated

the test similarly in United States v. VazquezHernandez, 849 F.3d 1219, 1226 (9th Cir. 2017), stating

that “where a jury instruction permits a conviction on

either of two alternative theories, one of which is later

found to be unconstitutional, the error affects the

defendant’s substantial right if there is a reasonable

probability that the jury convicted the defendant on

the invalid theory.”1

In contrast, the Tenth Circuit has held that, where

one ground for conviction is invalid, the only way that

a verdict may be sustained is if “it is possible to

determine that the jury relied on the valid ground or

necessarily made the findings required to support a

conviction on the valid ground.” United States v.

McKye, 734 F.3d 1104 (10th Cir. 2013). The Fourth

Circuit similarly in Bereano v. United States, 706 F.3d

568, 578 (4th Cir. 2013), stated that it would affirm a

conviction only if “the evidence that the jury

necessarily credited in order to convict the defendant

under the instructions given . . . is such that the jury

must have convicted the defendant on the legally

adequate ground in addition to or instead of the legally

inadequate ground.” See also Sorich v. United States,

709 F.3d 670 (7th Cir. 2013) (upholding a conviction on

the remaining, valid count because the alternative

theories of fraud under which the defendant was

charged were “coextensive,” essentially based on a

“single scheme”).

The difference between the approach of the Tenth

and Fourth Circuits on the one hand and that of the

Ninth is vividly illustrated in this case. There was no

factual dispute underlying the theory invalidated in

1A divided North Carolina Supreme Court in State v. Malachi,

821 S.E.2d 407, 421 (N.C. 2018), recently held similarly to the

Ninth Circuit that harmless error as under Pulido can be

demonstrated if there is “sufficient support” in the record for the

remaining valid theory.

this case – the only question was whether culpability

could attach under 18 U.S.C. 1519 in the absence of a

duty to provide information.

Under the test

articulated in McKye and Bereano, the error would not

be harmless because the jury’s verdict on the

invalidated theory relied on no facts relevant to the

remaining, valid theory. Indeed, it is far more logical

to conclude that the jury voted to convict under the

theory that did not involve contested facts. Instead,

the Ninth Circuit made its own independent

assessment of the record to determine that “sufficient

evidence” existed that defendant “caused” one of the

two campaigns to file inaccurate information.

The Fifth Circuit, like the Tenth and the Fourth,

also will consider whether the jury “in convicting on an

invalid theory of guilt, necessarily found facts

establishing guilt on a valid theory.” United States v.

Skilling, 638 F.3d 480, 482 (5th Cir. 2011) (citations

omitted). But, that court also will uphold the verdict

when the court “after a thorough examination of the

record is able to conclude beyond a reasonable doubt

that the jury verdict would have been the same absent

the error.” Id. (citations omitted). The Fifth Circuit,

like the Ninth, permits judges to scour the record to

weigh the evidence against a defendant on the valid

ground. That Circuit requires the evidence to be

overwhelming as opposed to the Ninth Circuit’s

requirement that there be “sufficient” evidence” of

guilt or “a reasonable probability” that the jury voted

to convict on the remaining valid theory. The Third

Circuit similarly has explained that “where there is a

clear alternative theory of guilt, supported by

overwhelming evidence, a defendant likely cannot

show . . . harmless error.” United States v. Andrews,

681 F.3d 509, 521 (3rd Cir. 2012). The Tenth Circuit in

fact, has noted the different standards among the

circuits. See McKye, 734 F.3d at 1113 (Brisco, J.,

concurring) (explaining that the Fifth and Third

Circuit tests were less demanding of the government

than that of the Tenth Circuit).2

Moreover, courts are split as to whether the

government or defendant bears the burden of proof.

While the Fourth Circuit has placed the burden on

proving harmlessness on the government, Bereano,

706 F.3d at 578, the Third Circuit places the burden

on the defendant. United States v. Andrews, 681 F.3d

509, 521 n.10 (3d Cir. 2012). The Ninth Circuit’s

“sufficient

evidence”

approach

relieves

the

government of that burden as well. In light of the lack

of uniformity, review by this Court is warranted.

B. Sixth Amendment Jury Right

Framing the harmless error test is important not

just because of the split in the circuits. Harmless error

review as in the Ninth Circuit invites judges to

reweigh the evidence, robbing defendants of their

critical Sixth Amendment right – “ensur[ing] that the

government must prove to a jury every criminal charge

beyond a reasonable doubt.”

United States v.

Raymond, 139 S. Ct. 2369, 2376 (2019). The Ninth

Circuit and to some extent Fifth and Third Circuits

2 For an earlier summary of the disagreement among the

circuits, see Erika A. Khalek, Searching for a Harmless

Alternative:

Applying the Harmless Error Standard to

Alternative Theory Jury Instructions, 83 Fordham L. Rev. 295

(2014).

have not asked what the jury actually found, but

rather how the panel itself would have voted as a jury.

As this Court stated in Sullivan v. Louisiana, 508 U.S.

275, 279 (1993), the proper inquiry is not whether “in

a trial that occurred without the error, a guilty verdict

would surely have been rendered, but whether the

guilty verdict actually rendered in this trial was surely

unattributable to the error.”3 Only when there is no

“reasonable doubt” that the jury voted to convict on the

remaining theory should the verdict be upheld.

Accordingly, this Court should grant certiorari to

consider whether such an open-ended test as used by

the Ninth Circuit is consistent with Pulido as well as

the Sixth Amendment.

3 As a dissenting Justice in North Carolina wrote about the

similar harmless error standard there, “I do not consider it to be

within a judicial forum’s proper purview to sift through the

evidence and to speculate as to which theory, between or among

multiple ones, a jury considered to be persuasive to reach its

verdict.” State v. Malachi, 821 S.E.2d 407, 423 (N.C. 2018)

(Morgan, J., dissenting in part).

II. CERTIORARI IS APPROPRIATE AS

WELL

PRESERVE

THE

FEDERALISM TENETS REINFORCED

IN OREGON V. MITCHELL

Certiorari also is warranted because the Ninth

Circuit’s decision on the Section 30121 counts

threatens to destabilize our plan of Union by

sanctioning Congress’s decision to prohibit foreign

nationals living in states from participating in state

and local elections through campaign contributions.

Currently, eleven states have authorized resident

foreigners to vote in municipal elections such as the

election

this

case,

http://www.ncsl.org/research/elections-andcampaigns/non-resident-and-non-citizen-voting.aspx,

and resident foreigners vote in addition in public

school elections in Maryland, Illinois, and California.

https://bppj.berkeley.edu/2019/03/04/spring-2019journal-noncitizen-voting-rights-in-the-united-states/

These jurisdictions have authorized noncitizen

participation in light of the fact that such individuals

live in their jurisdictions, pay taxes, and send their

children to the public schools. But if their noncitizen

residents contribute to the very same elections in

which they vote, they face a felony charge under

federal law. The federal interference is palpable.

Congress lacks the power to dictate to states

whether noncitizens living in their jurisdictions can

vote or contribute to state and local elections. In

Oregon v. Mitchell, 400 U.S. 112 (1970), this Court

struck down Congress’ directive that states mandate

an eighteen-year old voting age in state and local

elections. This Court explained that “the Constitution

intended the states to keep for themselves. . . the

power to regulate elections.” Id. at 124-25. Previously,

this Court in James v. Bowman, 190 U.S. 127 (1903),

struck down a congressional enactment criminalizing

bribery in state and local elections and, before that, in

United States v. Reese, 62 U.S. 214 (1876), the Court

struck down a federal criminal statute imposing duties

on inspectors of municipal elections. This Court

therefore has blocked Congress in the past from

interfering with states’ efforts to regulate their own

political structures, other than when issues of

individual constitutional rights have arisen.

Indeed, at the time of our Founding, noncitizens

voted in state and local elections, and a number of

states protected that right in their constitutions.4 As

4 The Framers of the Constitution clearly intended for aliens

to be involved in state elections. For example, the Massachusetts

Constitution written principally by John Adams explicitly

allowed foreigners to vote. After all, residency and property

ownership were the touchstones of voting, not citizenship. The

Massachusetts Constitution stated in pertinent part, "every male

inhabitant . . . shall have a right to give in his vote [and,] to

remove all doubts concerning the meaning of the word

‘inhabitant’ in this constitution, every person shall be considered

as an inhabitant, for the purpose of electing and being elected into

any office, or place within this State, in that town, district, or

plantation, where he dwelleth, or hath his home." Mass. Const.

part II, chap. I, § 2, art. II, repealed by Mass. Const. part IV, art.

II. Massachusetts was not alone. Rather, at the time the Federal

Constitution was ratified, at least 11 of the original 13 colonies

allowed aliens to vote. Ronald Hayduk, Democracy For All:

Restoring Immigrant Voting Rights in the United States, 35-52

(2006).

this Court observed, states traditionally “provided[d]

that persons of foreign birth could vote without being

naturalized for the conditions under which that right

is to be exercised are matters for the states alone to

prescribe.” Pope v. Williams, 193 U.S. 621, 633 (1904)

(emphasis added), overruled on other grounds by

Dunn v. Blumstein, 405 U.S. 330 (1972). As this Court

further noted, it is “the State’s broad power,” not that

of the federal government, “to define its political

community.” Sugarman v. Dougall, 413 U.S. 634, 642

(1973).

The court below, however, upheld that

displacement of state autonomy, concluding that,

because Section “30121(a)(1) regulates only foreign

nationals, which is within the ambit of Congress’s

broad power to regulate foreign affairs and condition

immigration,” (924 F.3d at 1043), no federalism issue

arises. According to the Ninth Circuit, the first

Congress could have overridden state constitutions

and prohibited foreign nationals from voting and

participating in state elections. Yet, as Alexander

Hamilton warned in Federalist No. 59, “Suppose an

article had been introduced into the Constitution,

empowering the United States to regulate the election

for the particular state, would any men have hesitated

to condemn it, both as an unwarrantable transposition

of power, and as a premeditated engine for the

destruction of state government?”

Congress simply lacks the power to alter the states’

fundamental control over their own political processes.

As this Court explained in preserving Missouri’s

mandatory retirement age for state judges in Gregory

v. Ashcroft, 501 U.S. 452, 459 (1991), “[through the

structure of its government. . . and the character of

those who exercise government authority, a State

defines itself as a sovereign.” The reasoning in

Ashcroft followed that in Taylor v. Beckham, 178 U.S.

548, 570-71 (1900): “[i]t is obviously essential to the

independence of the States, and to their peace and

tranquility that their power to prescribe the

qualification of their own officers. . . should be

exclusive, and free from external interference, except

so far as plainly provided by the Constitution of the

United States.” Cf. Arizona v. InterTribal Council of

Ariz., 570 U.S. 1, 16 (2013) (empowering each state to

determine its own voting qualifications “sprang from

the Framers’ aversion to concentrated power.”).

This Court has often noted the line between

regulation of noncitizens within the fifty states and

those abroad. Despite Congress’ concern with foreign

affairs, this Court has held that foreign nationals in

this country enjoy constitutional protections such as

the right to free speech, Bridges v. Wixon, 326 U.S.

135, 148 (1945), and the right to be free from

unreasonable searches and seizures under the Fourth

Amendment. Verdugo v. Urquidez, 494 U.S. 259

(1990). In so doing, this Court has generalized that

aliens gain the protections of the Constitution “when

they have come within the territory of the United

States and developed substantial connections with

this country.” Id. at 271. When afforded the right to

vote, resident aliens should be permitted to contribute

to those very campaigns as long as authorized under

state and local law.5

Leaving campaign finance regulation to the states

would not leave contributions from resident foreign

nationals unchecked. Indeed, California and other

states have passed laws banning or limiting the ability

of foreign contributions in their elections.

particular salience here, California has barred

contributions from foreign corporations, U.S.

subsidiaries of foreign corporations if influenced by

foreign management, foreign political parties, and

nonresidents, but has permitted contributions from

residents who are foreign nationals. Calif. Gov. Code

85320(b)-(c). And, of course, petitioner does not

challenge Section 30121 as applied to campaign

contributions from overseas, but rather as applied to a

San Diego homeowner, married to a U.S. citizen, who

wished to participate in the San Diego mayoral

election.

Accordingly, this Court should grant certiorari to

consider whether Congress, pursuant to its authority

over immigration and national security, may dictate to

states who can participate in state and local

governmental elections. The federalism structure of

5 This Court in Bluman v. FEC, 565 U.S. 1104 (2012),

affirmed a decision by a three-judge court, 800 F. Supp.2d 281

(D.C. Cir. 2011), holding after Citizens United that the federal

government’s unique obligation to define the national political

community provided the compelling interest justifying the

infringement on speech resulting from the ban on campaign

contributions from noncitizens. The three-judge court did not

address the federalism issues because no such arguments were

raised by the parties.

our nation is too important to permit such significant

readjustment without examination by this Court.

CONCLUSION

For the foregoing reasons, this Court should

grant the petition for certiorari.

Respectfully submitted,