United States v. Kulwant Sandhu

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 25, 2018
• Docket: 17-10265
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 25 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10265

Plaintiff-Appellee, D.C. No. 2:15-cr-00231-GEB-1 v.

KULWANT SINGH SANDHU, AKA Ken MEMORANDUM* Sandhu,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding

Argued and Submitted October 10, 2018 San Francisco, California

Before: D.W. NELSON, W. FLETCHER, and BYBEE, Circuit Judges.

Kulwant (“Ken”) Singh Sandhu appeals his jury conviction for two counts of

making harassing telephone calls to the Securities and Exchange Commission and

the Financial Industry Regulatory Authority in violation of 47 U.S.C.

§ 223(a)(1)(D). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. “When a party properly objects to a jury instruction, we review de novo

whether the instructions given ‘accurately describe[] the elements of the charged

crime.’” United States v. Garcia, 729 F.3d 1171, 1175 (9th Cir. 2013) (alteration

in original) (quoting United States v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007)

(en banc)). “[A]n instruction tracking a statute is generally not erroneous . . . .” Id.

at 1177 (citing Johnson v. United States, 270 F.2d 721, 725 (9th Cir. 1959)). “A

criminal defendant is entitled to jury instructions related to a defense theory so

long as there is any foundation in the evidence and the instruction is supported by

law.” United States v. Cortes, 757 F.3d 850, 857 (9th Cir. 2014) (quoting United

States v. Doe, 705 F.3d 1134, 1144 (9th Cir. 2013)) (internal quotation marks

omitted). We review for abuse of discretion whether the proposed construction has

“some foundation in the evidence” and review de novo whether an instruction is

“supported by law.” United States v. Anguiano-Morfin, 713 F.3d 1208, 1209 (9th

Cir. 2013) (quoting United States v. Marguet-Pillado, 648 F.3d 1001, 1006 (9th

Cir. 2011) (internal quotation marks omitted)).

In the instant case, the district court gave jury instructions that tracked the

language of the statute precisely. The district court’s jury instructions did not omit

any required elements of the crime. Cf. Garcia, 729 F.3d at 1177. Sandhu’s

proposed instructions regarding the First Amendment were not “supported by

law” because, as described below, 47 U.S.C. § 223(a)(1)(D) does not criminalize

2 speech, but only conduct. The district court did not err in failing to give the

defense’s proposed jury instructions.

This Court reviews the sufficiency of evidence to justify a conviction de

novo. United States v. Kaplan, 836 F.3d 1199, 1211 (9th Cir. 2016). The inquiry

is whether, when the evidence is viewed in the light most favorable to the

government, “any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Id. at 1211–12 (quoting Jackson v.

Virginia, 433 U.S. 307, 319 (1979)) (internal quotation marks omitted).

Under de novo review, we find that, when the evidence is viewed in the

light most favorable to the government, there was sufficient evidence to justify

Sandhu’s conviction based on the sheer number of calls, as well as the ensuing

conversations evidencing the intent Sandhu had in making those calls.

We review a challenge to the constitutionality of a statute de novo. United

States v. Ward, 989 F.2d 1015, 1017 (9th Cir. 1992).

Under de novo review, we find that Sandhu’s conviction is not

unconstitutional because 47 U.S.C. § 223(a)(1)(D) regulates conduct and does not

regulate speech. Any expressive aspects of Sandhu’s conduct were “integral to

criminal conduct” and thus not protected under the First Amendment. See, e.g.,

United States v. Osinger, 753 F.3d 939, 947 (9th Cir. 2014).

AFFIRMED.