United States v. Hassan Abpikar

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NOT FOR PUBLICATION JUL 25 2014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.
5