USA V. HARBANS SINGH ( 2022 )

FILED
NOT FOR PUBLICATION
DEC 19 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-30267
Plaintiff-Appellee, D.C. No.
2:20-cr-00085-RAJ-1
v.
HARBANS SINGH, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted November 8, 2022
Seattle, Washington
Before: IKUTA and COLLINS, Circuit Judges, and FITZWATER,** District
Judge.
Harbans Singh appeals his conviction for making a false statement on an
immigration document (his visa application) in violation of 18 U.S.C. § 1546(a);
accepting, possessing, or using an immigration document procured by fraud in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
violation of 18 U.S.C. § 1546(a); and making a false statement during an asylum
interview in violation of 18 U.S.C. § 1001(a)(2). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
The district court did not err in denying Singh’s motion to dismiss Counts I
and II on statute of limitations grounds. The government made an “official
request” for purposes of 18 U.S.C. § 3292(d) more than one year before the statute
of limitations would have expired on either Count I or II, and the district court
issued an order under 18 U.S.C. § 3292 to suspend the running of the statute of
limitations. The statute of limitations period was suspended as of the date of the
official request, United States v. Jenkins, 633 F.3d 788, 799 (9th Cir. 2011), and
did not begin running again until the government received certified copies of the
requested documents on June 15, 2020. Singh was indicted one month and seven
days later, well before the statute of limitations had run on either count. See
United States v. Bischel, 61 F.3d 1429, 1434 (9th Cir. 1995).
Second, Singh waived his Speedy Trial Act claim because he failed to move
for dismissal prior to trial. See 18 U.S.C. § 3162(a)(2); see also United States v.
Rodriguez-Preciado, 399 F.3d 1118, 1132 (9th Cir. 2005). Singh’s written
objections to the trial continuances, his “Invocation of Speedy Trial Rights,” and
his request for a dismissal of the indictment “on Sixth Amendment speedy trial
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grounds” were not motions for dismissal under the Speedy Trial Act, and so did
not preserve his Speedy Trial Act claim. United States v. Read, 918 F.3d 712, 722
(9th Cir. 2019); United States v. Brown, 761 F.2d 1272, 1276–77 (9th Cir. 1985).
Third, the district court did not err in precluding Singh from presenting a
materiality defense to the jury. See United States v. Serv. Deli Inc., 151 F.3d 938,
942 (9th Cir. 1998). “The element of materiality is evaluated under an objective
test, in which we must examine ‘the intrinsic capabilities of the false statement
itself,’” United States v. Lindsey, 850 F.3d 1009, 1014 (9th Cir. 2017) (citation
omitted), rather than “the extent of the agency’s reliance,” United States v. King,
735 F.3d 1098, 1108 (9th Cir. 2013). Therefore, the government’s knowledge of
Singh’s falsehoods and its lack of reliance on his statements during the asylum
interview have no legal relevance to the materiality of Singh’s statement. See Serv.
Deli Inc., 151 F.3d at 941.
Fourth, the district court did not err in holding that Singh’s Confrontation
Clause rights were not violated when the government introduced at trial
translations of Singh’s oral statements during his asylum interview without calling
as witnesses the interpreters who contemporaneously translated those statements.
See United States v. Aifang Ye, 808 F.3d 395, 402 (9th Cir. 2015); see also United
States v. Nazemian, 948 F.2d 522, 525–28 (9th Cir. 1991). Because the two
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Punjabi interpreters qualified as “language conduits,” under the factors established
by Nazemian, the use of their translations did not implicate the Confrontation
Clause. Aifang Ye, 808 F.3d at 401. We have already rejected Singh’s argument
that our language conduit rule is no longer binding circuit precedent after
Crawford v. Washington, 541 U.S. 36 (2004). See United States v. Orm Hieng,
679 F.3d 1131, 1141 (9th Cir. 2012). Finally, Singh waived any preindictment
delay claim by failing to move for dismissal pretrial. Fed. R. Crim. P. 12(b)(3)
(“[D]efenses, objections, and requests must be raised by pretrial motion if the basis
for the motion is then reasonably available and the motion can be determined
without a trial on the merits.”).
AFFIRMED.
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