Sunday, March 25, 2012

Case o' The Week: No Win for Nguyen, PC for Search Warrants

Tan Duc Nguyen
In Fort, the Ninth held that state cops working a state case were actually "federal law enforcement officers" for discovery purposes, if -- years later -- their state investigation  evolved into a federal prosecution. See generally blog entry here

In Nguyen, the Ninth considers a federal prosecution for obstructing justice, when a defendant lied to state cops investigating a state crime, that could have evolved into a federal voting prosecution -- but didn't. United States v. Nguyen, 2012 WL 874995 (9th Cir. Mar. 23, 2012), decision available here.

Another troubling prosecution, for those fond of the quaint old concept of limited federal criminal jurisdiction.

 Players: Decision by Judge Reinhardt, joined by Judge W. Fletcher and DJ Zouhary. 
Facts: Nguyen (above right) was a Republican Congressional candidate running against a Latina Democrat. Id. at *1. Mark Lam, an acquaintance of Nguyen’s, hired a mailing service to send 14,000 letters in the district, to newly-registered Democrat or “declined to state” voters with Hispanic surnames. Id. These letters, written in Spanish, warned that voter information was being collected and might be requested by anti-immigrant organizations. Id. The letter also warned that it was illegal for non-citizens to vote. Id.  

The letter sparked complaints; state agents interviewed Nguyen. Id. Nguyen admitted to having limited knowledge of the letter, but explained that Lam had sent it independently from the campaign. Id. 

A state agent got a search warrant for Nguyen’s home and campaign headquarters. The searches produced evidence that Nguyen was more involved with the letter than he had admitted to agents. Id. at *2. The State of California never charged Nguyen. Id. A year later, the feds brought charges for obstruction of justice, a violation of 18 USC § 1512(b)(3). Id. Nguyen lost a suppression motion and was convicted. Id.

Issue(s): “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. . . . . 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.” Id. at *2.

Held: “[W]e hold that the contents of the letter and the circumstances of its distribution were sufficient to allow the magistrate to conclude that there was a fair probability that the mailing constituted a violation of [the] California Election Code . . .  These facts created a fair probability that the distribution of the letter constituted an act of voter intimidation under California law, and provided a sufficient basis for the issuance of the warrant.” Id. at *5.

Of Note: Wait – what exactly was the federal crime here? Note that the State of California never charged Nguyen with anything, and the feds never charged Nguyen with violating a federal election law. Id. at *2. Instead, the federal charge was that Nguyen “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]. . .” Id. at *2. 

Put differently, Nguyen is now serving federal time for not being honest with state agents that were investigating a state offense that may have turned into a federal voting prosecution – but didn't. 


This bizarre prosecution isn’t lost on this panel. The Court sua sponte “expresses no opinion as to whether the basis of Nguyen’s conviction -- his failure to disclose information regarding the mailing of the letter to a state investigator during the course of a state investigation --  would satisfy the elements of 18 USC § 1512(b)(3).” Id. at *2 & n.1. 

So why didn’t this panel tackle what seems to be the real core question of the case? Because it was a question that the defense didn’t ask: “[o]n appeal, Nguyen does not challenge the basis of his federal indictment.” Id. at *2.

How to Use: Nguyen is a defense loss, but is a useful primer on probable cause challenges to search warrants. Id. at *3. (Perhaps unfortunately), Nguyen’s only challenge on appeal was on whether there was sufficient PC to issue the warrant. Judge Reinhardt accordingly devotes much of the opinion to what probable cause means, and what cause is necessary for a search warrant to issue. Id. at *3-*4.  It is a good example of a very close reading of a warrant affidavit: the Court in Nguyen actually rejects two of the three theories that the state agent put forth in support of her search warrant application. Id. at *4. 

For better or worse, Nguyen is also worth a close read because it flags several hurdles that are good to know before mounting a PC challenge to a search warrant (e.g., a warrant can later be upheld as showing PC for a statute not identified in the application, id. at *3 & n.2, and the lack of a later state prosecution for the crime investigated doesn’t undermine PC as to the search warrant, id. at *5).
For Further Reading: Turns out the Ninth isn’t alone, with raised eyebrows on this federal prosecution. Juries weren’t big fans of the Nguyen case, either. The first federal prosecution ended in a mistrial. See article here. The second trial resulted in an acquittal on one obstruction of justice charge, with a conviction on the “trying to obstruct a probe” charge. See article here.

Image of Mr. Tan Duc Nguyen from

Steven Kalar, Senior Litigator N.D. Cal FPD. Website at


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