                                                                          FILED
                              NOT FOR PUBLICATION                           JUL 25 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              )      No. 11-10192
                                       )
      Plaintiff - Appellee,            )      D.C. No. 5:08-cr-00560-RMW-1
                                       )
      v.                               )      MEMORANDUM*
                                       )
HASSAN ABPIKAR,                        )
                                       )
      Defendant - Appellant.           )
                                       )

                  Appeal from the United States District Court
                     for the Northern District of California
                Ronald M. Whyte, Senior District Judge, Presiding

                        Argued and Submitted July 8, 2014
                            San Francisco, California

Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.

      Hassan Abpikar appeals his conviction arising out of his false statements in

his Application for Naturalization filed with the United States Citizenship and

Immigration Services (CIS), an agency which is a component of the Department of

Homeland Security, and at a subsequent interview with a CIS adjudication officer.



      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
See 18 U.S.C. §§ 1001(a)(1), 1015(a), 1621. We affirm.

      (1)      Abpikar first argues that the evidence on certain counts1 was

insufficient to support the verdicts.2 We have carefully reviewed the record and

hold that the evidence sufficiently supports the convictions under § 1001(a)

(Counts One and Four). See United States v. White Eagle, 721 F.3d 1108, 1117

(9th Cir. 2013); United States v. Boone, 951 F.2d 1526, 1544 (9th Cir. 1991). It

similarly supports the convictions under § 1621 (Counts Three and Six). See

United States v. McKenna, 327 F.3d 830, 838 (9th Cir. 2003). Abpikar’s argument

that his statements were non-responsive but literally true3 is otiose because, in fact,

the record shows that they were responsive and literally false.4 To the extent that

there could be any doubt about Abpikar’s understanding of the questions, the jury

was entitled to, and did, resolve that issue against him. See Nevils, 598 F.3d at

      1
          Counts One, Three, Four, and Six.
      2
       See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.
2d 560 (1979); United States v. Nevils, 598 F.3d 1158, 1163–65 (9th Cir. 2010)
(en banc); see also United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781,
1785, 152 L. Ed. 2d 860 (2002); United States v. Flyer, 633 F.3d 911, 917 (9th Cir.
2011).
      3
       See Bronston v. United States, 409 U.S. 352, 352–53, 93 S. Ct. 595, 597,
34 L. Ed. 2d 568 (1973).
      4
        See United States v. Thomas, 612 F.3d 1107, 1115–17 (9th Cir. 2010);
United States v. Culliton, 328 F.3d 1074, 1079 (9th Cir. 2003) (per curiam); United
States v. Matthews, 589 F.2d 442, 444 (9th Cir. 1978).

                                           2
1170; United States v. Mohsen, 587 F.3d 1028, 1032 (9th Cir. 2009) (per curiam).

      (2)    Abpikar then asserts that the charges in the superseding indictment

arising out of his Application (Counts One through Three) were barred by the five

year statute of limitations. See 18 U.S.C. § 3282(a). Not so. That statute began to

run when the false Application was submitted to the government, for that is when

the crime became complete. See United States v. Smith, 740 F.2d 734, 736 (9th

Cir. 1984); see also Toussie v. United States, 397 U.S. 112, 115, 90 S. Ct. 858,

860, 25 L. Ed. 2d 156 (1970). Here, CIS received the Application on November

24, 2004, and the superseding indictment was filed on November 24, 2009; it was

timely. The fact that Abpikar signed the Application months before it was received

by CIS is of no moment; there is no evidence that it was mailed or otherwise

submitted before November 24, 2004.

      (3)    Abpikar next asserts that the indictment is multiplicitous because the

second set of false statements to the CIS adjudication officer (Counts Four, Five

and Six) were the same as those on the Application (Counts One, Two and Three).

See United States v. Olsowy, 836 F.2d 439, 442 (9th Cir. 1987); see also United

States v. Stewart, 420 F.3d 1007, 1013–14 (9th Cir. 2005). Again, on the basis of

this record, we disagree. Here, when the Application, with its false statements, was

filed, it initiated a process that included investigations and review for the purpose

                                           3
of obtaining further documents. See, e.g., 8 C.F.R. § 335.1; 8 C.F.R. § 335.2(b).

The next level of review, which occurred several months later, was by the

adjudication officer. The basic questions remained the same, but the questioner

was different and a new, more-serious stage of the process was being undertaken.

That examination could have resulted in an immediate grant of the Application by

the adjudication officer. See 8 C.F.R. § 335.3. Even if Abpikar then told the same

untruths, those “further impaired the operations of the government.” United States

v. Salas-Camacho, 859 F.2d 788, 791 (9th Cir. 1988). Moreover, Abpikar omitted

an encounter with law enforcement that occurred after he had submitted the

Application, and, therefore, breached a renewed duty to be truthful. See United

States v. Awad, 551 F.3d 930, 937–38 (9th Cir. 2009). There was no error, much

less plain error.

       (4)      Abpikar then claims that the superseding indictment should have been

dismissed because the Speedy Trial Act5 was violated when his trial did not

commence within the required seventy-day period.6 He focuses on a continuance

that was granted on August 16, 2010, and insists that the continuance was due to

court congestion, which is an inappropriate ground. See 18 U.S.C.



       5
           See 18 U.S.C. §§ 3161–74.
       6
           Id. § 3161(c)(1).

                                           4
§ 3161(h)(7)(C). However, the record indicates that the continuance was based on

the fact that relatively new defense counsel was still receiving discovery and

needed more time to prepare. Indeed, counsel stipulated to the need for that extra

time, and never withdrew from that stipulation or asserted that the contrary was

true. See United States v. Shetty, 130 F.3d 1324, 1328–29 (9th Cir. 1997); United

States v. Palomba, 31 F.3d 1456, 1462 (9th Cir. 1994). The district court did not

err. See United States v. Murillo, 288 F.3d 1126, 1133 (9th Cir. 2002).

      (5)      Abpikar finally asserts ineffective assistance of trial counsel.

However, we generally refuse to consider the effectiveness of trial counsel on

direct appeal, and see insufficient reasons to deviate from that general rule in this

case. See United States v. Liu, 731 F.3d 982, 995 (9th Cir. 2013); McKenna, 327

F.3d at 845.

      AFFIRMED.




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