                FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                No. 17-50337
                 Plaintiff-Appellee,
                                           D.C. No.
                 v.                     3:14-cr-00388-
                                           MMA-2
RAVNEET SINGH, AKA Ravi Singh,
             Defendant-Appellant.



UNITED STATES OF AMERICA,                No. 17-50387
                 Plaintiff-Appellee,
                                           D.C. No.
                 v.                     3:14-cr-00388-
                                           MMA-1
JOSE SUSUMO AZANO MATSURA,
AKA Mr. A, AKA Mr. Lambo,
             Defendant-Appellant.          OPINION



      Appeal from the United States District Court
         for the Southern District of California
      Michael M. Anello, District Judge, Presiding

        Argued and Submitted March 13, 2019
             San Francisco, California

                  Filed May 16, 2019
2                   UNITED STATES V. SINGH

    Before: MILAN D. SMITH, JR., PAUL J. WATFORD,
        and ANDREW D. HURWITZ, Circuit Judges.

            Opinion by Judge Milan D. Smith, Jr.


                          SUMMARY *


                          Criminal Law

    The panel reversed Jose Susumo Azano Mastura’s and
Ravneet Singh’s convictions on count 37 for falsification of
campaign records, affirmed all other convictions, vacated
the sentences, and remanded for resentencing, in a case in
which Azano, a foreign national, and his co-conspirators
sought to influence local politicians during the 2012 San
Diego election cycle by providing campaign contributions.

    Rejecting appellants’ contention that Congress lacks the
power to prohibit foreign nationals from donating and
contributing to state and local elections, the panel held that
Congress acted within its constitutional authority in enacting
52 U.S.C. § 30121(a). Bound by the Supreme Court’s
summary affirmance in Bluman v. FEC, 800 F. Supp. 2d 281
(D.D.C. 2011), aff’d, 565 U.S. 1104 (2012), the panel
rejected appellants’ contention that § 30121(a) violates
foreign nationals’ First Amendment rights.

    The panel rejected appellants’ contention that 52 U.S.C.
§ 30109(d), the penalty provision applicable to violations of
§ 30121, requires that the government prove that a defendant

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. SINGH                     3

harbors the specific intent to evade § 30121, not merely the
intent to commit unlawful conduct. As to the jury instruction
on the charge that Singh aided and abetted Azano’s unlawful
donations, the panel rejected Singh’s argument that the
district court’s failure to include the element that Singh knew
Azano lacked immigration status constitutes reversible error.
The panel held that the instructions as a whole adequately
covered the element of Singh’s knowledge of Azano’s
immigration status.

    Appellants contested their convictions under counts 5
through 37, arguing there was insufficient evidence to satisfy
the material elements of 18 U.S.C. § 1519 (falsifying
campaign records).

•   Singh argued that § 1519 requires an affirmative act, and
    that a mere omission, without an affirmative duty, cannot
    satisfy the actus reus element. The panel held that an
    omission satisfies the actus reus element for § 1519. The
    panel observed that Singh was not simply convicted
    under § 1519, but under 18 U.S.C. § 2(b) (willfully
    causing an act to be done which if directly performed by
    him or another would be an offense against the United
    States) in conjunction with § 1519, in which scenario the
    actus reus element merges with the mens rea element to
    focus liability on the person harboring the criminal
    intent. The panel wrote that the government thus did not
    need to prove that Singh prepared the campaign
    disclosure forms or had a duty to report Azano’s
    patronage; rather, that the campaign had a duty to report
    the information was enough, and § 2(b) authorized
    holding accountable those with the intent to conceal or
    falsify records.
4                 UNITED STATES V. SINGH

•   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
                 UNITED STATES V. SINGH                    5

that there was sufficient evidence to show a single
conspiracy.

    The panel affirmed Azano’s conviction under 18 U.S.C.
§ 922(g)(5)(B) for unlawfully possessing a firearm as a
nonimmigrant visa holder. Applying intermediate scrutiny
to Azano’s Second Amendment challenge, and assuming
without deciding that the Second Amendment extends to
nonimmigrant visa holders, the panel held that
§ 922(g)(5)(B)’s prohibition on firearm possession and
ownership by nonimmigrant visa holders serves an
important public interest in crime control and public safety,
without substantially burdening a nonimmigrant visa
holder’s assumed Second Amendment right. The panel
rejected Azano’s contentions that his possession of a gun as
a B2 visa holder fell within the “pleasure” designation in
22 C.F.R. § 41.31.(b)(2) or automatically qualified as a
“sporting purpose” pursuant to 18 U.S.C. § 922(y)(2). The
panel also rejected Azano’s contention that § 922(g) is
unconstitutionally vague as applied to B1/B2 visa holders.

    The panel held that the district court did not abuse its
discretion in denying Azano’s motion for a new trial based
on alleged ineffective assistance of his trial counsel, and
declined to entertain his ineffective-assistance claim on
direct appeal. The panel held that Singh waived his
argument that the district court abused its discretion in
denying his motion to sever his trial from all defendants
except Azano. The panel held that the record does not
support Singh’s claim that the joint trial compromised his
due process rights.
6                UNITED STATES V. SINGH

                       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.


                        OPINION

M. SMITH, Circuit Judge:

    Jose Susumo Azano Matsura aspired to participate in
developing San Diego and turning it into the Miami Beach
of the west coast. To help achieve this goal, Azano and his
co-conspirators sought to influence local politicians during
the 2012 San Diego election cycle by providing campaign
contributions. However, as a foreign national, Azano was
prohibited by federal law from donating or contributing to
American campaigns.

    A jury convicted Azano and Ravneet Singh of various
crimes stemming from the campaign contributions; Azano
                  UNITED STATES V. SINGH                     7

was also convicted of violating federal firearms law. Azano
and Singh (together, Appellants) now appeal, raising a litany
of constitutional, statutory, and procedural arguments.
Although we affirm the district court in large part, we
reverse their convictions on count thirty-seven (obstruction
of justice in violation of 18 U.S.C. § 1519).

  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.” 22 C.F.R. § 41.31(a)(1). Azano
traveled weekly back and forth from San Diego to Mexico
City for business purposes.

    At trial, the government introduced evidence that Azano
had an interest in developing San Diego, and particularly the
Chula Vista waterfront area. The government introduced
testimony that in order to achieve his development goals,
Azano believed that he needed government cooperation,
which included a relationship with the mayor of San Diego.
Azano had previously formed such relationships in Mexico
by making campaign contributions to candidates for various
offices. Azano set about implementing a similar strategy in
San Diego. With the aid of his co-conspirators, Azano
sought to secure the favor of San Diego mayoral candidates
who he believed would support his development plans.
Azano first supported Bonnie Dumanis during the 2012
8                 UNITED STATES V. SINGH

primary elections, but when she lost, he supported Bob
Filner in the general election. Azano did so despite the fact
that federal law prohibits “a foreign national, directly or
indirectly,” from making “a contribution or donation of
money or other thing of value . . . in connection with a
Federal, State, or local election.” 52 U.S.C. § 30121(a).

    Azano’s funding scheme involved a number of people.
Ernie Encinas, head of Azano’s security team, was a former
San Diego police officer with useful political connections
who helped represent Azano’s interests within the two
campaign organizations. Marco Polo Cortes provided
lobbying connections and helped facilitate initial meetings
with the two campaign staffs. Mark Chase was a local car
dealer and Azano’s “good friend,” who arranged straw
donors to donate to the Dumanis mayoral campaign, and
later disguised Azano’s donations to Filner’s political action
committee (PAC) and other entities by writing checks from
his personal and business accounts. Edward Susumo Azano
Hester, Azano’s son, recruited straw donors to give to the
Dumanis campaign.

    Singh was the CEO of ElectionMall, a media platform
offering a “one-stop sho[p] of technology to candidates and
political parties running for office.” Singh first worked with
Azano on a Mexican presidential campaign in 2011. This
professional relationship continued into the mayoral
campaigns of Dumanis and Filner. Aaron Rosheim, the
former director of web strategy at ElectionMall, testified that
Azano paid ElectionMall for work on the San Diego
campaigns. For this work, Singh billed Azano’s Mexican
companies, using the code names “Betty Boop” for
Dumanis’s campaign and “Plastic Man” for Filner’s
campaign. Evidence also suggested that Singh tried to
conceal any paper trail of his work for Azano. An internal
                     UNITED STATES V. SINGH                9

ElectionMall email from Singh with the subject title “OLD
invoices for Mr. A” stated: “Please don’t have cynthia or
anyone else send things with a code name. And then list the
clients name in a [sic] email. That is stupid and dangerous
for me.” Additionally, in response to an email from Encinas
about forming a PAC for Dumanis, Singh stated, “I am not
responding to this email. Bec[au]se of the legal
ram[i]fications.”

II. Procedural Background

     A federal grand jury returned a Third Superseding
Indictment (the Indictment) charging four individuals—
Azano, Singh, Cortes, and Hester—and one corporate
defendant, ElectionMall, with illegally conspiring to commit
campaign finance fraud in the 2012 San Diego mayoral
elections. The government later dropped ElectionMall as a
defendant and the four individuals were tried together. After
trial, Cortes and Hester reached plea agreements and pled
guilty to participating in the campaign contribution scheme.
Encinas and Chase, who had been charged as co-
conspirators in a separate indictment, both also pled guilty
to participating in the campaign contribution scheme.

    Appellants were charged in count one of the Indictment
with conspiracy to violate the Federal Election Campaign
Act (FECA), 52 U.S.C. §§ 30109(d)(1)(A) and
30121(a)(1)(A), 1 for unlawful campaign donations by a
foreign national, and conspiracy to falsify campaign records,
in violation of 18 U.S.C. § 1519. Both were charged in count
three with the substantive offense of making unlawful
campaign donations as a foreign national. Singh was
charged in counts thirty-two and thirty-seven with the

   1
       Previously codified at 2 U.S.C. § 441e.
10                UNITED STATES V. SINGH

substantive offense of falsifying campaign records in
violation of 18 U.S.C. § 1519. Azano was similarly charged
in counts five through thirty-seven with the substantive
offense of falsifying campaign records. Finally, Azano was
charged in count four with making a conduit contribution in
connection with a federal election, in violation of 52 U.S.C.
§§ 30109(d)(1)(A) and 30122, and in count thirty-nine with
unlawfully possessing a firearm as an alien in violation of
18 U.S.C. § 922(g)(5)(B).

    A jury found Appellants guilty on all the counts with
which they were respectively charged. On October 27, 2017,
the district court sentenced Azano to three years in custody
and three years of supervised release, and on August 31,
2017 sentenced Singh to fifteen months in custody and three
years of supervised release. Appellants timely appealed.

                        ANALYSIS

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

                              I

    Appellants first argue that 52 U.S.C. § 30121 is
unconstitutional on two grounds: (1) it exceeds Congress’s
jurisdiction to legislate concerning state and local elections,
and (2) it violates foreign nationals’ First Amendment
speech rights. We review the constitutionality of a statute de
novo. United States v. Jones, 231 F.3d 508, 513 (9th Cir.
2000).

   We first consider the genesis of § 30121. As donations
and contributions have grown more important to the
campaign process, so too has concern over foreign influence
in American elections. In 1966, Congress amended the
                      UNITED STATES V. SINGH                              11

Foreign Agents Registration Act to prohibit foreign
governments and entities from contributing to American
political candidates. See Pub. L. No. 89-486, § 8, 80 Stat.
244, 248–49. Subsequently, Congress banned all foreign
nationals 2 from making such contributions. See Federal
Election Campaign Act Amendments of 1974, Pub. L. No.
93-443, § 101(d), 88 Stat. 1263, 1267.

    Still, suspicions of foreign influence in American
elections remained a pervasive concern. Following the 1996
election, the Senate Committee on Governmental Affairs
investigated foreign campaign contributions. See S. Rep.
No. 105-167 (1998). The Committee Report identified
efforts by agents of the People’s Republic of China to
“influence U.S. policies and elections through, among other
means, financing election campaigns.” Id., pt. 1, at 47. The
report focused chiefly on federal elections, but also referred
to a “seeding program” to develop individuals to run in state
and local elections. Id., pt. 2, at 2509.

    In response to the Committee Report, Congress enacted
the Bipartisan Campaign Reform Act of 2002 (BCRA),
which amended FECA and further limited foreign nationals’
ability to participate in elections. See Pub. L. No. 107-155,
§ 303, 116 Stat. 81, 96. As amended, § 30121(a) currently
states,




    2
       A “foreign national” is “a foreign principal” or “an individual who
is not a citizen of the United States or a national of the United States . . .
and who is not lawfully admitted for permanent residence.” 52 U.S.C.
§ 30121(b).
12               UNITED STATES V. SINGH

       It shall be unlawful for—

           (1) a foreign national, directly or
           indirectly, to make—

              (A) a contribution or donation of
              money or other thing of value, or to
              make an express or implied promise
              to make a contribution or donation in
              connection with a Federal, State, or
              local election;

              (B) a contribution or donation to a
              committee of a political party; or

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

52 U.S.C. § 30121(a).

                             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
                   UNITED STATES V. SINGH                        13

394; see also U.S. Const. art. I, § 8, cl. 4 (granting Congress
the power to “establish an uniform Rule of Naturalization”).
Thus, where, as here, Congress has made a judgment on a
matter of foreign affairs and national security by barring
foreign nationals from contributing to our election
processes, it retains a broad power to legislate. The Supreme
Court has recognized that “any policy toward aliens is vitally
and intricately interwoven with contemporaneous policies in
regard to the conduct of foreign relations, the war power, and
the maintenance of a republican form of government.”
Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952). A
prohibition on campaign donations and contributions by
foreign nationals is necessary and proper to the exercise of
the immigration and foreign relations powers. See U.S.
Const. art. I, § 8, cl. 18. Accordingly, Congress was within
its power when it acted to protect the country’s political
processes after recognizing the susceptibility of the elections
process to foreign interference. 3

    Appellants assert that because the Constitution “intended
to preserve to the States the power . . . to establish and
maintain their own separate and independent governments,”
Congress may not legislate over state and local elections at
all. Oregon v. Mitchell, 400 U.S. 112, 124 (1970) (opinion
of Black, J.). In Mitchell, the Court found unconstitutional
a provision of the Voting Rights Act that set the voting age
for state and local elections at eighteen. Id. at 117–18.
Similarly, in James v. Bowman, the Court struck down a
federal statute criminalizing bribery in state and local
elections. 190 U.S. 127, 142 (1903).


    3
     Importantly, § 30121(a)(1) bars only foreign nationals from
making donations and contributions and does not reach the actions of
American citizens or permanent residents.
14                 UNITED STATES V. SINGH

    We find these cases inapposite. They discuss Congress’s
authority to regulate state elections as they relate to citizens
of the United States. In contrast, § 30121(a)(1) regulates
only foreign nationals, which is within the ambit of
Congress’s broad power to regulate foreign affairs and
condition immigration. Therefore, the case before us is
readily distinguished from Mitchell and James.

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

                                B

    We next consider Appellants’ First Amendment
challenge. The district court determined § 30121(a) does not
violate foreign nationals’ First Amendment rights,
concluding that “it is bound by [the decision in Bluman v.
FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), aff’d, 565 U.S.
1104 (2012)] due to the Supreme Court’s summary
affirmance.” Appellants argue that we are not bound by the
summary affirmance, because “a summary affirmance by
[the Supreme] Court is a ‘rather slender reed’ on which to
rest future decisions.” Morse v. Republican Party of Va.,
517 U.S. 186, 203 n.21 (1996) (quoting Anderson v.
Celebrezze, 460 U.S. 780, 784 n.5 (1983)). Further, because
Bluman considered foreign national participation in a federal
election—not, as here, a state or local election—Appellants
argue that the summary affirmance poses no bar.

    “[T]he Supreme Court’s summary affirmances bind
lower courts, unless subsequent developments suggest
otherwise. . . . Although . . . the Supreme Court is more
willing to reconsider its own summary dispositions than it is
to revisit its prior opinions, this principle does not release the
lower courts from the binding effect of summary
affirmances.” United States v. Blaine Cty., 363 F.3d 897,
                  UNITED STATES V. SINGH                     15

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 § 30121
requires that an individual act “knowingly and willfully”
when making a prohibited donation or contribution:

       (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 . . .

52 U.S.C. § 30109(d) (emphasis added). Appellants argue
that the district court committed reversible error by failing to
properly instruct the jury as to the required mental state.
Appellants argue that Ratzlaf v. United States, 510 U.S. 135
(1994), requires that the government prove that the
defendants harbored the specific intent to evade § 30121, not
16                UNITED STATES V. SINGH

merely the intent to commit unlawful conduct. Singh
additionally argues that the district court erred by failing to
instruct the jury that “knowledge of Azano’s immigration
status was a material element of the crime.”

    “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 of the case.” United
States v. Liew, 856 F.3d 585, 595–96 (9th Cir. 2017).

                              A

    In its jury instructions covering Azano’s principal
offense, the district court stated the intent element for
§§ 30109(d)(1)(A) and 30121 as follows:

       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
                     UNITED STATES V. SINGH                           17

         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

     4
       Although Singh’s proposed jury instructions did not clearly request
a heightened standard, we nonetheless address his arguments.
18                UNITED STATES V. SINGH

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, § 30121 is not a technical statute, nor does it
present the same concern of inadvertently ensnaring
uninformed individuals. In Ratzlaf, the Court discussed how
an identical action—structuring a transaction—could have
different legal and tax implications simply by varying the
amount of the transaction. 510 U.S. at 145. Because the line
between liability and innocent conduct in that case was so
narrow, the requirement of a heightened standard was
necessary. We see no such narrow line in § 30121, which
simply prohibits foreign nationals from donating or
contributing to candidates or political parties. Azano
suggests that it may be difficult to discern whether a specific
donation is prohibited since foreign nationals may still
donate to “issue advocacy,” but the Court did so clearly in
FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 456
(2007). Azano further suggests it may be difficult to discern
what is prohibited because only in the last thirty-five years
were donations to political candidates and parties
criminalized. Yet, it is our “traditional rule that ignorance of
the law is no excuse” from liability and Azano’s distinctions,
then, provide no basis to apply the heightened standard.
Bryan, 524 U.S. at 196.

    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
                  UNITED STATES V. SINGH                     19

§ 30109(d)(1)(A). Azano argues that because we have
previously endorsed a heightened standard, we should do so
again. However, Goland addressed only whether the district
court abused its discretion by failing to instruct the jury that
it may not infer the defendant’s specific intent to violate
FECA simply from his failure to adhere to administrative or
civil provisions. Id. at 1454. We did not consider whether
§ 30109(d)(1)(A) requires a heightened standard. Similarly,
in United States v. Whittemore, 776 F.3d 1074, 1078–81 (9th
Cir. 2015), we assessed only whether the jury instruction
given by the district court adequately allowed the jury to
consider the defense’s theory, not which standard was
required. Neither case provides meaningful guidance for the
question presented here.

    Azano also cites language in the district court’s opinion
in Bluman for the proposition that “seeking criminal
penalties for violations of [§ 30121]—which requires that
the defendant act ‘willfully’— . . . require[s] proof of the
defendant’s knowledge of the law.” 800 F. Supp. 2d at 292
(citation omitted). However, this statement played no role
in the judgment of the panel, and the court provided no
support for it besides a citation to United States v. Moore,
612 F.3d 698, 702–04 (D.C. Cir. 2010) (Kavanaugh, J.,
concurring), a case considering an entirely different statute.
Not an essential part of the holding and with no analysis, this
language in Bluman does not persuade us that the heightened
specific intent standard is appropriate for this statute.

    Instead, we find persuasive the analysis of a sister circuit
that addressed whether the defendants acted “knowingly and
willfully” pursuant to § 30109(d)(1)(A) when charged with
violating FECA’s reporting requirements under § 30104. In
United States v. Benton, the court held that the district court
did not abuse its discretion when giving a jury instruction
20                UNITED STATES V. SINGH

adopting the Bryan standard of willfulness. 890 F.3d 697,
715 (8th Cir. 2018). It rejected the defendant’s argument
that “willfully” under FECA falls within the exception for
highly technical statutes. We reach the same conclusion
here. Appellants make no showing that § 30109(d)(1)(A)
requires application of the heightened standard.

    Nor does the rule of lenity require that we interpret
“willfully” to require a heightened standard. While
“ambiguity concerning the ambit of criminal statutes should
be resolved in favor of lenity,” Skilling v. United States,
561 U.S. 358, 410 (2010) (quoting Cleveland v. United
States, 531 U.S. 12, 25 (2000)), Azano asks us to conclude
that any criminal statute that imports a willfulness mens rea
is somehow vague or ambiguous. This does not comport
with the Supreme Court’s case law, as we generally apply
the willfulness standard articulated in Bryan, and require the
heightened specific intent standard only in exceptional cases.
See 524 U.S. at 194–95 (“[W]e held that these statutes
‘carv[e] out an exception to the traditional rule’ that
ignorance of the law is no excuse and require that the
defendant have knowledge of the law.” (footnote omitted)
(second alteration in original) (quoting Cheek, 498 U.S. at
200)).

    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.
                  UNITED STATES V. SINGH                     21

                               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)      and
       437g(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.”
22                UNITED STATES V. SINGH

    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 donations and contributions by
a foreign national.” The jury thus knew that in order to find
Singh guilty, it had to find that Singh was aware that Azano
was a foreign national.

     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
                 UNITED STATES V. SINGH                     23

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 § 30109
and Singh’s defense theory.

                             III

    Appellants contest their convictions under counts five
through thirty-seven, arguing there was insufficient evidence
to satisfy the material elements of § 1519. “We review the
sufficiency of the evidence de novo.” United States v.
Kaplan, 836 F.3d 1199, 1211 (9th Cir. 2016). We “view[]
the evidence in the light most favorable to the prosecution”
and ask whether “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

    Section 1519 was enacted as part of the Sarbanes-Oxley
Act of 2002, Pub. L. No. 107-204, 116 Stat. 745, and “was
intended to prohibit, in particular, corporate document-
shredding to hide evidence of financial wrongdoing.” Yates
v. United States, 135 S. Ct. 1074, 1081 (2015). It provides
that

       [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.
24                UNITED STATES V. SINGH

18 U.S.C. § 1519. “In order to prove a violation of § 1519,
the Government must show that the defendant (1) knowingly
committed one of the enumerated acts in the statute, such as
destroying or concealing; (2) towards ‘any record,
document, or tangible object’; (3) with the intent to obstruct
an actual or contemplated investigation by the United States
of a matter within its jurisdiction.” United States v. Katakis,
800 F.3d 1017, 1023 (9th Cir. 2015).

    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 responded that he would
“voluntarily help” to “break[] into the San Diego market”
after being warned “[t]hat no one could pay someone to
volunteer in a campaign.” For the Filner campaign,
campaign manager Ed Clancy testified that when discussing
payment options, Singh responded, “Don’t worry. It’s taken
care of.” The government argued that these material
omissions caused the campaigns to file false entries on
campaign disclosure reports. For Azano’s remaining counts,
the government argued that he made false statements to the
campaigns by using strawmen donors to conceal his political
donations. Azano never donated himself, but instead
instructed others to write checks on his silent behalf, with the
promise of reimbursement. The government argued that
these straw donors caused the campaigns to file false entries
on campaign disclosure reports.

                               A

    Appellants first argue that the government failed to
introduce evidence to satisfy any of the material elements of
                  UNITED STATES V. SINGH                   25

§ 1519 for counts thirty-two and thirty-seven. We assess
each element in turn.

1. Actus Reus

    The government relied on Singh’s omission to satisfy
§ 1519’s actus reus element. Singh argues that the language
in § 1519 requires an affirmative act, and that a mere
omission, without an affirmative duty, cannot satisfy the
element. Yet, many courts, including our own, have found
that an omission with the requisite mental state satisfies the
element. See, e.g., United States v. Taohim, 529 F. App’x
969, 974 (11th Cir. 2013) (per curiam); United States v.
Moyer, 674 F.3d 192, 207 (3d Cir. 2012); United States v.
Schmeltz, 667 F.3d 685, 687–88 (6th Cir. 2011); United
States v. Jackson, 186 F. App’x 736, 738–39 (9th Cir. 2006);
see also United States v. Lanham, 617 F.3d 873, 887 (6th
Cir. 2010) (“Material omissions of fact can be interpreted as
an attempt to ‘cover up’ or ‘conceal’ information.”). None
of these decisions analyzed in depth the question before us;
they instead assumed that an omission with the requisite
intent satisfies § 1519. But Singh cites no case that has held
that an omission does not satisfy the requisite intent.

    Two district courts have provided more extensive
analysis on the issue and concluded that an omission
constitutes a “false entry” within the meaning of § 1519. See
United States v. Croley, No. 1:14-CR-29-2 (WLS), 2016 WL
1057015, at *5–6 (M.D. Ga. Mar. 14, 2016); United States
v. Norman, 87 F. Supp. 3d 737, 743–46 (E.D. Pa. 2015).
Croley found that the plain language of § 1519 “does not
exclude a knowing and intentional omission being construed
as a false report.” 2016 WL 1057015, at *5. Norman noted
the lack of authority on this precise issue, but drew from the
generally accepted premise that an omission with the
requisite mental state constitutes a deceptive practice, and
26                UNITED STATES V. SINGH

relied on a comparison to “an analogous statute,” 18 U.S.C.
§ 1005. 87 F. Supp. 3d at 744. Section 1005 prohibits “any
false entry in any book, report, or statement of [a] bank . . .
with intent to injure or defraud such bank . . . or to deceive
any officer of such bank.” 18 U.S.C. § 1005. Both §§ 1519
and 1005 prohibit false entries with the requisite mental
state, and “[u]nder § 1005, ‘an omission of material
information qualifies as a false entry.’” United States v.
Weidner, 437 F.3d 1023, 1037 (10th Cir. 2006) (quoting
United States v. Cordell, 912 F.2d 769, 773 (5th Cir. 1990)).

    We find the district courts’ analyses convincing. It is
difficult to differentiate between the culpability of one who
intentionally omits information, and one who conceals or
falsifies information. It may also be difficult to differentiate
between acts of concealment and omission. Imagine, for
example, an individual who omits the detail of a specific,
identifiable tattoo from a witness statement, in order to
conceal the identity of a perpetrator. In such a situation, the
omission is an act of concealment or falsification.

    Singh observes that the text of § 1519 lists only
affirmative prohibited acts, and relies on the “interpretive
canon, expressio unius est exclusio alterius, ‘expressing one
item of [an] associated group or series excludes another left
unmentioned.’” Chevron U.S.A. Inc. v. Echazabal, 536 U.S.
73, 80 (2002) (alteration in original) (quoting United States
v. Vonn, 535 U.S. 55, 65 (2002)). But “[h]owever well
[statutory canons such as expressio unius] may serve at times
to aid in deciphering legislative intent, they have long been
subordinated to the doctrine that courts will construe the
details of an act in conformity with its dominating general
purpose.” SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344,
350 (1943). Congress intended for § 1519 to apply to a
broad range of conduct. See S. Rep. No. 107-146, at 14
                 UNITED STATES V. SINGH                    27

(2002) (“Section 1519 is meant to apply broadly to any acts
to destroy or fabricate physical evidence so long as they are
done with the intent to obstruct, impede, or influence the
investigation or proper administration of any matter . . . .”)
(emphasis added)). This supports the conclusion that an
omission satisfies § 1519’s actus reus element, especially
since terms such as “conceal” and “false entry,” specifically
listed in the statute, refer to similar actions.

    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 § 1519 convictions based on omissions, the
defendants either prepared the record or document, or were
responsible for doing so. See, e.g., Taohim, 529 F. App’x at
974 n.2 (finding that the jury could reasonably have found
the defendant responsible for the report at issue); Moyer,
674 F.3d at 207 (finding that a chief of police had a legal
duty to disclose certain information in his report). The
campaign disclosure forms for the mayoral candidates in this
case were filed pursuant to San Diego’s Municipal Code
section 27.2930(a) and California Government Code section
84200.5—both of which imposed the reporting requirements
on campaigns and candidates, not on individuals
“volunteering” or providing services to the campaigns.

    However, Singh was not simply convicted under § 1519.
Instead, the jury instructions and the Indictment disclosed
that the government proceeded under 18 U.S.C. § 2(b) in
conjunction with § 1519. “[Section 2(b)] is intended ‘to
impose criminal liability on one who causes an intermediary
28               UNITED STATES V. SINGH

to commit a criminal act, even though the intermediary who
performed the act has no criminal intent and hence is
innocent of the substantive crime charged. . . .’” United
States v. Richeson, 825 F.2d 17, 20 (4th Cir. 1987) (second
alteration in original) (quoting United States v. Tobon-
Builes, 706 F.2d 1092, 1099 (11th Cir. 1983)). It specifically
prohibits a person from “willfully caus[ing] an act to be done
which if directly performed by him or another would be an
offense against the United States.” 18 U.S.C. § 2(b).

    Under this theory of liability, the actus reus element
merges with the mens rea element to focus liability on the
person harboring the criminal intent. United States v.
Curran, 20 F.3d 560, 567 (3d Cir. 1994) (“Under
section 2(b), the intermediary committing the actus reus, the
physical aspect of a crime, may be blameless and, therefore,
is not the person whom society seeks to punish. To fix
blameworthiness on the actual malefactor, § 2(b) merges the
mens rea and actus reus elements and imposes liability on
the person possessing the ‘evil intent’ to cause the criminal
statute to be violated.”). Thus, the government did not need
to prove that Singh prepared the reports or had a duty to
report Azano’s patronage; rather, that the campaign had a
duty to report the information is enough. See United States
v. Fairchild, 990 F.2d 1139, 1141 (9th Cir. 1993) (finding
liability under § 2(b) because defendant’s actions caused
false statements to be made to the government).

    Proceeding under this theory is in line with Congress’s
intention that § 1519 be broadly construed:

       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
                 UNITED STATES V. SINGH                   29

       another technical distinction which burdens
       successful prosecution of wrongdoers.

S. Rep. No. 107-146, at 15 (emphasis added). Where, as
here, the campaign lacked the requisite intent because it was
unaware of Azano’s payments due to Singh’s silence, § 2(b)
authorized holding accountable those with the intent to
conceal or falsify records.

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 § 2(b), the
government had to show that Singh “willfully” caused the
false reporting. 18 U.S.C. § 2(b). Singh argues that Curran
compels us to use the Ratzlaf standard, which would require
that he must have known “the reporting requirements and
intended to cause them to be evaded.” But, under either the
Ratzlaf or Bryan standard, we find the evidence sufficient to
affirm count thirty-two for Singh’s actions in connection
with the Dumanis campaign, although insufficient to affirm
count thirty-seven in connection with his actions regarding
the Filner campaign.

     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
30                  UNITED STATES V. SINGH

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

    Regarding Appellants’ convictions pursuant to count
thirty-seven—causing the Filner campaign to file false
reports—we find the evidence insufficient to sustain either
conviction. When the Filner campaign asked about payment
for Singh’s social media services, Singh stated, “Don’t
worry. It’s taken care of.” Clancy, the campaign manager,
did not respond with any questions, and later admitted, “I
made a mistake . . . . I internalized the information . . . . I
should have let somebody know.” Singh’s statement cannot
reasonably be construed as willfully causing the Filner
campaign to file falsified reports.         Instead, Singh’s
statements suggested that he was being paid by a third party,
yet the campaign failed to note this in the reports. This
cannot meet even the Bryan standard of willfulness, and so
we reverse both convictions under count thirty-seven.




     5
      On this point, Singh also argues that the jury instructions were
erroneous. Due to the overwhelming evidence we have recited, however,
we find any instructional error harmless beyond a reasonable doubt. See
Neder v. United States, 527 U.S. 1, 9–10 (1999).
                     UNITED STATES V. SINGH                           31

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.” 18 U.S.C. § 1519. He cites cases that focus on the
nexus between the action and an investigation to argue that
the government erred “by conflating the intent to commit the
underlying crime with the intent to impede a subsequent
investigation.”

    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 S. Rep. No. 107-146, at 14–15 (“This statute is
specifically meant not to include any technical requirement,
which some courts have read into other obstruction of justice
statutes, to tie the obstructive conduct to a pending or
imminent proceeding or matter. It is also sufficient that the
act is done “in contemplation” of or in relation to a matter or
investigation.”). 6

    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

    6
      Our sister circuits have similarly interpreted the section broadly.
See, e.g., United States v. Moore, 708 F.3d 639, 649 (5th Cir. 2013);
United States v. Kernell, 667 F.3d 746, 755 (6th Cir. 2012); United States
v. Gray, 642 F.3d 371, 378–79 (2d Cir. 2011).
32                UNITED STATES V. SINGH

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 state and local laws, not federal
law. Section 1519 requires that the conduct “influence the
investigation or proper administration of any matter within
the jurisdiction of any department or agency of the United
States.” 18 U.S.C. § 1519 (emphasis added).

    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 18 U.S.C. § 1001, and
                     UNITED STATES V. SINGH                          33

both cases found no “direct relationship . . . between the
false statement and an authorized function of a federal
agency or department.” Facchini, 874 F.2d at 641; see also
Ford, 639 F.3d at 720–22. In contrast, the government here
focused on donations and contributions by a foreign
national, and those fall within the jurisdiction of the FBI. 7

                                   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
    7
       Singh argues that the rule of lenity directs us to resolve any
ambiguity in § 1519 in his favor. But even if we were to agree that the
statute is ambiguous, we would refuse to apply the rule of lenity in this
case given the strong evidence that Appellants knew that their actions
were unlawful. See United States v. Nader, 542 F.3d 713, 721 (9th Cir.
2008).
34                UNITED STATES V. SINGH

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 right to donate. We find that the
government presented sufficient evidence that Azano put the
funds into AIRSAM’s account to disguise the donation,
much like the straw donations provided by U.S. citizens.
The government presented documentation showing that
AIRSAM’s bank account did not have the funds on May 8,
2012—the date on the check to Dumanis’s PAC—to pay the
$100,000 pledged. The government then presented bank
statements showing transfers from Azano’s personal bank
account ($125,000) and from his Mexican company
($300,000) into AIRSAM’s account.

    In summation, we hold that an omission satisfies the
actus reus element for § 1519. A reasonable jury could have
found beyond a reasonable doubt that Singh’s omission
willfully caused Dumanis’s campaign to file false reports,
and so we affirm Azano’s and Singh’s convictions under
count thirty-two. Furthermore, a reasonable jury could have
found 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. We therefore affirm Azano’s convictions under
counts five through thirty-six. Finally, finding the evidence
                  UNITED STATES V. SINGH                    35

insufficient to prove that Singh willfully caused the Filner
campaign to file false records, we reverse Appellants’
convictions under count thirty-seven.

                              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
36                UNITED STATES V. SINGH

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
                  UNITED STATES V. SINGH                   37

       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
38                UNITED STATES V. SINGH

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
who 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 from them, as they all worked towards
election of mayoral candidates. The straw donations that
Hester, Cortes, and Chase obtained, whether for the
individual campaigns or for PACs, affected Singh’s success
as a “volunteer” for the campaigns. All of their efforts
benefitted the common goal of electing Azano’s chosen
mayoral candidates. Under the standard in Fernandez, this
was sufficient to show a single conspiracy.

                              V

    Azano was also convicted of unlawfully possessing a
firearm as an alien in violation of 18 U.S.C. § 922(g)(5)(B),
which states,
                   UNITED STATES V. SINGH                    39

       (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.” Id. § 922(y)(2) (emphasis added).

    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. 22 C.F.R. § 41.31(a). “The term pleasure . . . refers to
legitimate activities of a recreational character, including
40                UNITED STATES V. SINGH

tourism, amusement, visits with friends or relatives, rest,
medical treatment, and activities of a fraternal, social, or
service nature.” Id. § 41.31(b)(2).

    Azano does not dispute that he was admitted under a
nonimmigrant visa, but makes three arguments challenging
his conviction under § 922(g)(5)(B). First, Azano argues
that § 922(g)(5)(B) is unconstitutional because it violates his
Second Amendment right to possess a firearm. Next, he
argues that the possession of a gun can be “of a recreational
character” and for “amusement” and thus, B2 visa holders
qualify for § 922(y)(2)’s “sporting purposes” exception.
Lastly, Azano alternatively argues that if the regulations and
statute do not authorize B2 holders to possess a gun, the
statute is unconstitutionally vague as applied to him. We
address each argument in turn.

                              A.

    Azano’s Second Amendment challenge comes on the
heels of our recent decision in United States v. Torres, where
we held that § 922(g)(5)(A), which prohibits aliens illegally
or unlawfully in the United States from possessing firearms,
does not violate the Second Amendment. 911 F.3d 1253,
1264–65 (9th Cir. 2019). We must now consider whether
§ 922(g)(5)(B), a similar prohibition that applies to
nonimmigrant visa holders, violates the Second
Amendment.

   To analyze whether a statute violates the Second
Amendment, we utilize a two-step test, which “(1) asks
whether the challenged law burdens conduct protected by the
Second Amendment and (2) if so, directs courts to apply an
appropriate level of scrutiny.” United States v. Chovan,
735 F.3d 1127, 1136 (9th Cir. 2013). Under the first step,
we must determine whether the law burdens the Second
                  UNITED STATES V. SINGH                    41

Amendment “based on a ‘historical understanding of the
scope of the [Second Amendment] right.’” Jackson v. City
and Cty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014)
(alteration in original) (quoting District of Columbia v.
Heller, 554 U.S. 570, 625 (2008)). In Torres, we attempted
to trace the historical understanding of the right by looking
primarily at the Supreme Court’s decision in Heller and
decisions by our sister circuits. We noted that while Heller
did not resolve who exactly possesses a Second Amendment
right, the decision “described the Second Amendment as
‘protect[ing] the right of citizens’ and ‘belong[ing] to all
Americans.’” Torres, 911 F.3d at 1259 (alterations in
original) (quoting Heller, 554 U.S. at 581, 595).
Additionally, we observed that while all of our sister circuits
that had analyzed the constitutionality of § 922(g)(5)(A) had
found the statute constitutional, they had differed in their
assessment of its historical scope. Compare United States v.
Portillo-Munoz, 643 F.3d 437, 440 (5th Cir. 2011)
(concluding that “the people” does not include illegal aliens
given Heller’s descriptions of the right extending to those in
“the political community”), United States v. Flores, 663 F.3d
1022, 1023 (8th Cir. 2011) (per curiam) (agreeing with the
Fifth Circuit), and United States v. Carpio-Leon, 701 F.3d
974, 979 (4th Cir. 2012) (“[I]llegal aliens do not belong to
the class of law-abiding members of the political community
to whom the Second Amendment gives protection.”), with
United States v. Meza-Rodriguez, 798 F.3d 664, 670–72 (7th
Cir. 2015) (applying the sufficient connections test in United
States v. Verdugo-Urquidez, 494 U.S. 259 (1990), to
determine that the unlawful alien had sufficient connections
to the United States to be afforded Second Amendment
rights), and United States v. Huitron-Guizar, 678 F.3d 1164,
1168 (10th Cir. 2012) (refusing to determine whether
unlawful aliens are within the scope of the Second
Amendment and instead assuming it for the second part of
42                UNITED STATES V. SINGH

the analysis). After this analysis, we noted that “the state of
the law precludes us from reaching a definite answer on
whether unlawful aliens are included in the scope of the
Second Amendment right.” Torres, 911 F.3d at 1261.

    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.” 22 C.F.R.
§ 41.31(a). In order to grant such a visa, the government
ensures that the individual “has permission to enter a foreign
country at the end of the temporary stay” and “[a]dequate
financial arrangements . . . to carry out the purpose of the
visit to and departure from the United States.” Id. The
government argues that because such measures ensure a
temporary visit, a short-term visitor could not be part of “the
people” any more than unlawful or illegal aliens who attempt
to permanently reside in the United States. While this
argument does not lack force, we believe it prudent to follow
Torres, “assume (without deciding) that the Second
Amendment extends to” nonimmigrant visa holders, and
proceed to the second step of the analysis. 911 F.3d at 1261.

    In Torres, we determined that the appropriate level of
scrutiny to apply to a Second Amendment challenge of
§ 922(g)(5) is intermediate. Id. at 1262–63 (explaining that
“§ 922(g)(5) does not implicate the core Second
Amendment right, and . . . its burden is tempered”).
                  UNITED STATES V. SINGH                   43

Intermediate scrutiny requires “(1) the government’s stated
objective to be significant, substantial, or important; and
(2) a reasonable fit between the challenged regulation and
the asserted objective.” Chovan, 735 F.3d at 1139. The
government does not need to show that the statute is “the
least restrictive means of achieving its interest,” but rather
“only that [the statute] promotes a ‘substantial government
interest that would be achieved less effectively absent the
regulation.’” Fyock v. City of Sunnyvale, 779 F.3d 991, 1000
(9th Cir. 2015) (quoting Colacurcio v. City of Kent, 163 F.3d
545, 553 (9th Cir. 1998)).

    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. Section 922(y)(2), for
example, exempts those that come to the United States for
hunting or sporting purposes. And, § 922(y)(3) creates a
broad waiver for visa holders who have “resided in the
United States for a continuous period of not less than
180 days” if they receive a statement of support from their
embassy or consulate, and the Attorney General confirms
that they do not “jeopardize the public safety.” 18 U.S.C.
§ 922(y)(3)(B)(i)–(ii), (C)(ii).    We find this tailoring
sufficient.
44                UNITED STATES V. SINGH

    In summary, § 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. We therefore hold that § 922(g)(5)(B) survives
intermediate scrutiny.

                             B.

    We turn next to Azano’s claim that his possession of a
gun fell within the “pleasure” designation in 22 C.F.R.
§ 41.31(b)(2) or automatically qualified as a “sporting
purpose” pursuant to 18 U.S.C. § 922(y)(2). Azano further
argues that if the regulations and statute are not interpreted
this way, they are void for vagueness. We review the
interpretation of a statute, and whether it is
unconstitutionally vague, de novo. United States v.
Robertson, 875 F.3d 1281, 1286–87 (9th Cir. 2017).

    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.” 22 C.F.R
§ 41.31(b)(2). But the plain language of § 922(g)(5)(B)
betrays Azano’s argument. Section 922(g)(5)(B) applies
directly to nonimmigrant visa holders. Azano agrees that B2
visa holders are nonimmigrant visa holders, yet simply states
that we should interpret “pleasure” activities to include
firearm ownership.         However, “[a]bsent persuasive
indications to the contrary, we presume Congress says what
it means and means what it says.” Simmons v. Himmelreich,
136 S. Ct. 1843, 1848 (2016).

   Azano’s next position—that firearm possession for
“sporting purposes” is a pleasure activity—necessarily
implies that all B2 visa holders fall under § 922(y)(2)’s
                      UNITED STATES V. SINGH                            45

exception. “In construing provisions . . . in which a general
statement of policy is qualified by an exception, we usually
read the exception narrowly in order to preserve the primary
operation of the provision.” Comm’r v. Clark, 489 U.S. 726,
739 (1989). This interpretive method guides our analysis
here.    Section 922(g)(5)(B) plainly prohibits firearm
possession by B2 visa holders, subject only to limited
exceptions clearly spelled out in § 922(y). Had Congress
intended for the sporting purposes exception in
§ 922(y)(2)(A) to apply to all B2 visa holders, it would have
said so explicitly.

    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)). Section
922(g)(5)(B) quite clearly prohibits possession of firearms
by all those admitted to the United States under a

    8
       To the extent that Azano now claims that he qualified under
§ 922(y)(2), he failed to raise this affirmative defense below, and so it is
forfeited. See Brannan v. United Student Aid Funds, Inc., 94 F.3d 1260,
1266 (9th Cir. 1996).
46                UNITED STATES V. SINGH

nonimmigrant visa. Section 922(y)(2) includes an exception
to this general rule for nonimmigrant visa holders who visit
the United States for lawful hunting or sporting purposes.
We interpret “sporting purposes” according to the narrow
provision that includes it. The exception reasonably implies
sporting activities that involve the use of guns, such as target
shooting, or trap and skeet shooting. It does not suggest a
broader definition including all recreational activities or
possession of guns for pleasure. Section 922(y)(2)’s
legislative history also supports this interpretation:

       [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 § 922(y)(2)’s exception and, by a plain reading
of the statute, are subject to the prohibition on gun
possession.        Furthermore,     § 922(y)(2)    is   not
unconstitutionally vague as applied to B1/B2 visa holders.
Accordingly, we affirm the district court’s holdings and
Azano’s conviction under § 922(g)(5)(B).

                              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
                  UNITED STATES V. SINGH                     47

court abused its discretion when denying his motion to sever
the trial from co-defendants Cortes and Hester.

                              A.

     “[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
48                 UNITED STATES V. SINGH

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,
                  UNITED STATES V. SINGH                   49

557 (9th Cir. 1996) (quoting United States v. Rewald,
889 F.2d 836, 859 (9th Cir. 1989)). “This is so even if the
record contains some indication of deficiencies in counsel’s
performance.” Massaro v. United States, 538 U.S. 500, 504
(2003). We will consider an ineffective assistance claim on
direct appeal only “where the record is sufficiently
developed to permit review and determination of the issue,
or the legal representation is so inadequate that it obviously
denies a defendant his Sixth Amendment right to counsel.”
Steele, 733 F.3d at 897 (quoting United States v. Rivera-
Sanchez, 222 F.3d 1057, 1060 (9th Cir. 2000)). Neither
circumstance applies here.

                             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 (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.
50              UNITED STATES V. SINGH

                    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. 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.
