United States v. Tan Duc Nguyen

• Decision Date: 23 March 2012
• Docket Number: No. 11–50061.,11–50061.
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. TAN DUC NGUYEN, Defendant–Appellant.

12 Cal. Daily Op. Serv. 3380

2012 Daily Journal D.A.R. 3826

673 F.3d 1259

UNITED STATES of America, Plaintiff–Appellee,

v.TAN DUC NGUYEN, Defendant–Appellant.

No. 11–50061.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 12, 2012.Filed March 23, 2012.

H. Dean Steward, San Clemente, CA, for the appellant.

Erin H. Flynn (argued), DOJ Atty., Washington, DC, Jessica Dunsay Silver, DOJ Atty., Washington, DC, Thomas E. Perez, Assistant Attorney General, Washington, DC, for the appellee.

Appeal from the United States District Court for the Central District of California, David O. Carter, District Judge, Presiding. D.C. No. 8:08–cr–00251–DOC–1.Before: STEPHEN REINHARDT and WILLIAM A. FLETCHER, Circuit Judges, and JACK ZOUHARY, District Judge.^*

OPINION

REINHARDT, Circuit Judge:

Tan Nguyen was convicted in federal court on one count of obstruction of justice, 18 U.S.C. § 1512(b)(3), for failing to disclose the full extent of his knowledge regarding the mailing of a letter that could reasonably be believed to constitute an attempt at voter intimidation. The evidence produced against Nguyen during his federal prosecution was obtained pursuant to a search warrant issued in the course of a state investigation into the possible violation of a state statute in relation to the mailing of a Spanish-language letter by Nguyen, then the Republican candidate for a seat in the U.S. House of Representatives, to foreign-born registered voters with Hispanic surnames who were registered Democrats or “decline to states.” Nguyen contends that there was insufficient probable cause to support the issuance of the warrant and that, therefore, the evidence obtained pursuant to it should have been suppressed at his federal trial. We review the district court's denial of Nguyen's motion to suppress, and affirm.

Background

Beginning on October 11, 2006, Mailing Pros, Inc., a mass mailing service, mailed approximately 14,000 letters, on behalf of a customer known as “Mark Lam,” to individuals on a mailing list comprised of “newly registered voters with Hispanic surnames ... who were born outside of the United States” and who had registered as Democrats or “decline to states.” The letter was written in Spanish and, among other things, advised recipients that “there is no incentive for voting in this country.” They were informed that if they voted in the upcoming election in November their personal information would be collected by a newly implemented government computer system, and that organizations that were “against immigration” might request information from this system. The letter also encouraged citizens to “participate in the democratic process of voting,” but warned those who “are in this country illegally or [are] legal resident[s]” that “voting in a federal election is a crime” that could result in incarceration and deportation. The California Attorney General's office began an investigation into its source after receiving complaints regarding this letter from some of its recipients. This investigation ultimately led agents to Tan Nguyen, the Republican candidate for United States Congress in the 47th District of California. Nguyen was running against the Democratic incumbent, Loretta Sanchez, a Latina who had strong support in the Hispanic community.

Agents of the California Attorney General's office interviewed Nguyen with his attorney on October 19, 2006. During this meeting Nguyen admitted to having limited knowledge of the letter prior to its mailing, but stated that he believed that it was created and distributed by an acquaintance, Mark Nguyen, also known as “Mark Lam,” and sent independently from the campaign. Shannon Williams, the agent in charge of the investigation, disbelieved Nguyen's account of the letter and sought a warrant to search Nguyen's home and campaign headquarters. In the affidavit supporting the warrant, Williams stated that “there existed a conspiracy or agreement between [ ] Nguyen, Mark Nguyen and perhaps other [sic] to draft, produce and mail out letters to the targeted Orange County voters to benefit [ ] Nguyen's Congressional campaign by discouraging a discreet [sic] and perceived vulnerable set of potential voters who would be expected to favor his Democratic opponent in the upcoming election.” The affidavit included a number of facts that had been discovered in the course of the investigation that linked Nguyen and his campaign to the letter. Included among them was a statement from the proprietor of Mailing Pros, who received a call from Nguyen asking the company to expedite the mailing job for customer Mark Lam. The affidavit also included a statement from an employee of the company that provided the targeted mailing list used, informing agents that the list had been requested directly by Nguyen. The affidavit also noted that the agent had been advised by attorneys within the Attorney General's office that the letter “could constitute a violation of [California] Election Code sections 18540, use of threats to influence voting, 18502, interference with an election, and 18543, challenging a person's right to vote.” Attached to the affidavit was a copy of an email exchange from September 2006 produced by Nguyen in which he discussed the contents of the letter with campaign supporter Roger Rudman and an English-language translation of the letter received by the targeted voters.

The state court magistrate issued a warrant to search for evidence related to the mailing of the letter. After a search of Nguyen's home and campaign headquarters, the latter conveniently coinciding with a press conference held by Nguyen state agents seized documents and computers, and found emails showing greater involvement by the defendant in the drafting and mailing of the letter than he had previously acknowledged. No charges were ultimately filed regarding the mailing of the letter or any other violations of state law, and the State Attorney General, Bill Lockyer, issued a press release in May 2007 informing the public that the state did not intend to file charges.

In October 2007, a year after the election took place and Nguyen lost his bid to unseat Sanchez, a federal investigation was officially opened. The federal agents did not uncover any new information or evidence related to the sending of the letter, and no charges of a violation of any federal election law were filed against Nguyen or any of his associates; however, Nguyen was charged with obstruction of justice, 18 U.S.C. § 1512(b)(3), for the failure to disclose to state agents the full extent of his knowledge regarding the creation and mailing of the letter at issue. The government alleged that Nguyen's failure to disclose information to state agents provided a basis for his federal prosecution. Although there was no federal investigation pending at the time Nguyen was questioned, the government argued that “there didn't have to be a federal investigation ... all that matters is that the defendant tried to hinder or prevent information from getting to sources that may ultimately turn out to be a federal investigation [for voter intimidation under federal law].” According to the government, Nguyen's intent was “for the State to receive [no information] so that they could give nothing to the federal investigators.”

On appeal, Nguyen does not challenge the basis of his federal indictment, but solely the constitutionality of the warrant that was issued by the state magistrate in connection with the state investigation. Prior to trial, Nguyen moved to suppress the evidence obtained as a result of the search on the ground that the warrant was not supported by probable cause to believe that a crime had been committed. The district court denied his motion and he was convicted by a jury of making statements with the intent to hinder or delay a federal investigation, and ultimately sentenced to twelve months and one day in prison. We consider here only the one narrow question presented by Nguyen: Was there probable cause for the state magistrate to believe that a crime had been committed and that the search was likely to reveal evidence of that crime. ¹

Discussion

I.

A court evaluating the constitutionality of a search conducted pursuant to a search warrant issued by a magistrate reviews the magistrate's probable cause determination for clear error. United States v. Celestine, 324 F.3d 1095, 1100 (9th Cir.2003). When a district court denies a motion to suppress based on its conclusion that the warrant was supported by probable cause, we review the denial de novo. United States v. Meek, 366 F.3d 705, 711 (9th Cir.2004).

II.

We must conclude that a warrant has been validly issued if there is a substantial basis for the magistrate's conclusion that “given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). For a finding of probable cause to satisfy this nexus requirement, there must be a fair probability both that a crime has been committed and that evidence of its commission will be found in the location to be searched. United States v. Hill, 459 F.3d 966, 970–72 (9th Cir.2006); United States v. Rubio, 727 F.2d 786, 793–95 (9th Cir.1983). In this case, Nguyen does not claim that the magistrate lacked a sufficient basis to conclude that evidence pertaining to the creation and mailing of the letter could be found at his home and campaign headquarters. Instead, Nguyen relies solely on the first, and equally important, element of the nexus requirement that requires that a warrant be supported by a “fair probability” that a crime has been committed. He argues that the mailing of the letter did not amount to a violation of any law, and, consequently, could not provide a substantial basis for concluding that there was probable cause to believe that...