United States v. Singh

UNITED STATES OF AMERICA, Plaintiff, v. HARINDER SINGH, Defendant.

Case No. 2:14-cr-00648-CAS-9

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

May 27, 2020

ORDER

I. INTRODUCTION AND BACKGROUND

On November 13, 2014, a grand jury indicted defendant Harinder Singh and twenty-one other defendants.¹ The indictment charged defendant with three criminal counts: (1) conspiracy to launder money, in violation of 18 U.S.C. § 1956; (2) conspiracy to operate an unlicensed money transmitting business, in violation of 18 U.S.C. § 371; and (3) operating an unlicensed money transmitting business in violation of 18 U.S.C. § 1960. Dkt. 1 ("Indictment"). The indictment also charged 21 other alleged co-conspirators for theirinvolvement in what the government describes as a "large-scale Hawala money laundering organization."² See generally Indictment.

Defendant's trial commenced on January 9, 2018. Dkt. 869. On January 19, 2018, the jury returned its verdict against defendant, convicting defendant on Counts One, Two, and Three charged in the indictment. Dkt. 889. On February 2, 2018, defendant filed a motion for a new trial and a judgment of acquittal. Dkt. 895. The Court denied defendant's motion on April 2, 2018. Dkt. 937.

On November 26, 2018, the Court sentenced defendant to 70 months in prison and three years of supervised release. Dkt. 1061. During defendant's sentencing, defendant orally moved to be released pending defendant's appeal to the United States Court of Appeals for the Ninth Circuit. Id. The Court denied defendant's motion for bail pending appeal. Id. The Court determined that "there are not really debatable issues as to whether a new trial would be granted or the conviction reversed on appeal." Dkt. 1113 ("Sentencing Tr.") at 56:16-18. The Court also determined that, for the period of time between defendant's sentence and defendant's self-surrender date, defendant was not a flight risk, though defendant "has greater incentive to flee" given the Court's 70-month sentence. Id. at 57:9-20. The Court concluded "that the issue of danger to the community is a neutral issue." Id. at 57:1-2.

On January 29, 2019, defendant filed a motion requesting that the Ninth Circuit grant defendant bail pending appeal. Dkt. 1180-3. Defendant's request to the Ninth Circuit for bail pending appeal raised the same issues as defendant's request for bail which the Court previously denied, including: (1) whether the jury instructions constructively amended theindictment; (2) whether the Court erred in instructing the jury with respect to willful blindness; and (3) whether the Court erred in instructing the jury with respect to the 18 U.S.C. § 1960 charge. Dkt. 1180-3. The Ninth Circuit denied defendant's request on February 27, 2019, concluding that defendant failed to establish: (1) "that the appeal raises a 'substantial question' of law or fact that is 'fairly debatable'"; (2) that "'if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed,' or a sentence that does not include a term of imprisonment, or a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process." Dkt. 1100.

On April 13, 2020, defendant filed a renewed motion for bond pending appeal. Dkt. 1180 ("Mot."). The government filed an opposition on April 27, 2020. Dkt. 1181 ("Opp."). Having carefully considered the parties' arguments, the Court finds and concludes as follows.³

II. LEGAL STANDARD

Pursuant to the Bail Reform Act of 1984, "the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for writ of certiorari, be detained, unless the judicial officer finds . . . by clear and convincing evidence that the person is not likely to flee or pose a danger . . . if released . . . and . . . that the appeal is not for the purposes of delay and raises a substantial question of law or fact likely to result in" "reversal," "an order for a new trial," "a sentence that does not include a term of imprisonment," or "a reduced sentence to a term of imprisonment less than the total of the time already servedplus the expected duration of the appeal process." 18 U.S.C. § 3143(b). "[T]he Court must resolve two questions: (1) whether the appellate issues raised by the defendant are 'substantial' and (2) whether those issues are 'likely to result in reversal.'" United States v. Kuburovich, No. 5:16-cr-00373-EJD-1, 2019 WL 6711702, at *1 (N.D. Cal. Oct. 9, 2019) (citing United States v. Handy, 761 F.2d 1279, 1280-81 (9th Cir. 1985)). A "'substantial question' is one that is 'fairly debatable' or 'fairly doubtful.'" Handy, 761 F.2d at 1283 (internal citations omitted). "The defendant . . . need not, under Handy, present an appeal that will likely be successful, only a non-frivolous issue that, if decided in the defendant's favor, would likely result in reversal or could satisfy one of the other conditions." United States v. Garcia, 340 F.3d 1013, 1021 n.5 (9th Cir. 2003). "The burden is on [d]efendant . . . to overcome the presumption that he should be detained while his appeal is pending." Kuburovich, 2019 WL 6711702, at *1 (citing United States v. Montoya, 908 F.2d 450, 451 (9th Cir. 1990)).

III. DISCUSSION

Defendant avers that his pending appeal presents "substantial" issues, including, inter alia:

(1) whether the evidence presented at trial was sufficient to prove that the hawala transactions that form the basis for the conspiracy count (Count One) "were designed to conceal the nature, location, source, ownership, or control of the funds";

(2) whether the evidence presented at trial was sufficient "to prove that [defendant] conspired to, or did, conduct a money transmitting business which transferred funds 'on behalf of the public,' as required for conviction on Counts Two and Three"; and

(3) whether "[t]he exclusion of evidence concerning key government witness Sanjeev Wadwha's role in a murder-for-hire investigation violated [defendant's] right to confrontation."

Mot. at 5 (emphasis in original). The Court addresses defendant's contentions in turn.

A. Transaction Money Laundering Conviction

Count One of the indictment charged defendant with conspiring to, inter alia, "conduct financial transactions . . . [k]nowing that the transactions were designed in whole and in part to conceal and disguise the nature, the location, the source, the ownership, and control of the proceeds . . . in violation of . . . Section 1956(a)(1)(B)(i)[.]" Indictment at 5-6. Defendant avers that "the transactions were designed to pay the Canadian drug trafficker's debts and procure more drugs for sale." Mot. at 5. According to defendant, "under Cuellar v. United States, 553 U.S. 550 (2008), and the cases that followed it," the government's evidence at trial "[wa]s not enough." Mot. at 5.

In Cuellar, the United States Supreme Court interpreted a different provision of the money laundering statute, commonly referred to as the "transportation prong," which "makes it a crime to attempt to transport 'funds from a place in the United States to a place outside the United States knowing that the funds involved in the transportation represent the proceeds of some form of unlawful activity and knowing that such transportation is designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.'" 553 U.S. at 561 (citing 18 U.S.C. § 1956(a)(2)(B)(i)) (internal alterations omitted). The Supreme Court concluded that, with respect to the transportation prong, "merely hiding funds during transportation is not sufficient to violate the statute, even if substantial efforts have been expended to conceal the money." Cuellar, 553 U.S. at 563. That is because "[t]he statutory text makes clear . . . that a conviction under this provision requires proof that the purpose—not merely the effect—of the transportation was to conceal or disguise a listed attribute." Id. at 567 (emphases added).

Although Cuellar concerned the money laundering statute's transportation prong, rather than Section 1956(a)(1)(B)(i), the statute's transaction prong, various circuit courts of appeal have nonetheless specifically applied Cuellar in cases involving the money laundering statute's transaction prong. See, e.g., United States v. Huezo, 546 F.3d 174, 179 (2d Cir. 2008) ("Cuellar confirms that a conviction for transaction money laundering,like a conviction for transportation money laundering, requires proof that the purpose or intended aim of the transaction was to conceal or disguise a specified attribute of the funds."); United States v. Brown, 553 F.3d 768, 787 (5th Cir. 2008) (determining, in case arising under money laundering statute's transaction prong, that "we apply the doctrine of Cuellar and hold that the government's evidence is sufficient to satisfy that standard."); accord United States v. Sun, 673 F. App'x 729, 733 (9th Cir. 2016) (unpublished) (determining that the government satisfied "purpose to conceal" element with respect to charge based on transaction prong and citing Cuellar for the proposition that "the government must prove 'that the purpose—not merely effect—of the action was to conceal or disguise a listed attribute.'") (internal alterations omitted). And, in another case concerning the money laundering statute's transaction prong, albeit one that does not specifically cite Cuellar for the proposition that defendant advances here, the Ninth Circuit determined that "concealment money laundering merely requires that the financial transaction be designed to 'conceal the source or control of the proceeds of the specified unlawful activity.'" United States v. Wilkes, 662 F.3d 524, 547 (9th Cir. 2011...