USA V. HARBANS SINGH

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2022
• Docket: 21-30267
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 19 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS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

2 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

3 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.