FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50061
Plaintiff-Appellee, D.C. No.
v. 8:08-cr-00251-
TAN DUC NGUYEN, DOC-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted
January 12, 2012—Pasadena, California
Filed March 23, 2012
Before: Stephen Reinhardt and William A. Fletcher,
Circuit Judges, and Jack Zouhary, District Judge.*
Opinion by Judge Reinhardt
*The Honorable Jack Zouhary, District Judge for the U.S. District Court
for Northern Ohio, sitting by designation.
3359
3362 UNITED STATES v. NGUYEN
COUNSEL
H. Dean Stewart, San Clemente, California, 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 appel-
lee.
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 mail-
ing 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 insuffi-
cient 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 dis-
trict court’s denial of Nguyen’s motion to suppress, and
affirm.
UNITED STATES v. NGUYEN 3363
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 His-
panic 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 com-
puter system, and that organizations that were “against immi-
gration” might request information from this system. The
letter also encouraged citizens to “participate in the demo-
cratic 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 com-
plaints regarding this letter from some of its recipients. This
investigation ultimately led agents to Tan Nguyen, the Repub-
lican 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 inter-
viewed Nguyen with his attorney on October 19, 2006. Dur-
ing 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 acquaint-
ance, 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
3364 UNITED STATES v. NGUYEN
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 vul-
nerable set of potential voters who would be expected to favor
his Democratic opponent in the upcoming election.” The affi-
davit 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 tar-
geted 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 conve-
niently 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
UNITED STATES v. NGUYEN 3365
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 let-
ter, 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 fail-
ure to disclose information to state agents provided a basis for
his federal prosecution. Although there was no federal investi-
gation pending at the time Nguyen was questioned, the gov-
ernment 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 govern-
ment, Nguyen’s intent was “for the State to receive [no infor-
mation] so that they could give nothing to the federal
investigators.”
On appeal, Nguyen does not challenge the basis of his fed-
eral 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 investi-
gation, 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
3366 UNITED STATES v. NGUYEN
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 con-
ducted 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 sup-
press 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 (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 evi-
dence 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
1
In confining our analysis to this question, we express no opinion as to
whether the basis of Nguyen’s conviction — his failure to disclose infor-
mation regarding the mailing of the letter to a state investigator during the
course of the state investigation — would satisfy the elements of 18
U.S.C. § 1512(b)(3).
UNITED STATES v. NGUYEN 3367
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 viola-
tion of any law, and, consequently, could not provide a sub-
stantial basis for concluding that there was probable cause to
believe that a crime had been committed.
In Agent Williams’s affidavit she did not contend that any
act other than the sending of the letter amounted to a violation
of any law. In the application for a search warrant, Williams
sought no more than evidence that would connect Nguyen to
the mailing of the letter, and did not suggest that evidence of
further criminal activity could be found in the locations to be
searched. The warrant itself related only to the letter and pro-
vided the agents with the authority to search for evidence
related to the mailing of a letter “advising the addressee that
it is illegal for a resident illegally in the country to vote.” The
distribution of the letter is therefore the only act alleged to
have constituted a crime, and the probable cause determina-
tion must therefore be based on the purported illegality of this
letter. If the letter combined with the circumstances of its
mailing as described to the magistrate clearly did not amount
to a violation of the law, then there was no probable cause,
and the warrant was invalid. See Rubio, 727 F.2d at 793
(holding that the warrant was invalid because it did not tend
to establish that the basis for the warrant — membership in
Hell’s Angels Motorcycle Club — was an illegal activity); see
also Mink v. Knox, 613 F.3d 995, 1003-10 (10th Cir. 2010)
(recognizing that a warrant was invalidly issued when there
was no probable cause to believe that the challenged publica-
tion violated the state criminal libel statute).
[1] A probable cause determination is valid only if there is
a fair probability that a crime has been committed. This “re-
quires only a probability or substantial chance of criminal
activity, not an actual showing of such activity.” New York v.
3368 UNITED STATES v. NGUYEN
P.J. Video, Inc., 475 U.S. 868, 877-78 (1986) (quoting Gates,
462 U.S. at 244 n.13). Conversely, if the facts alleged in an
affidavit cannot support the conclusion that there is a fair
probability that a law has been violated, this standard is not
met and there is no probable cause to support the issuance of
the warrant. In the affidavit attesting that the letter constituted
a violation of California law, Agent Williams listed three pro-
visions that she believed the letter “could” have violated: Cal-
ifornia Election Code Sections 18502, 18543, and 18540.2 All
three of these statutory provisions criminalize acts that pre-
vent individuals from voting through misleading or coercive
acts.
Section 18502 criminalizes interference with “officers
holding an election or conducting a canvass, or with the vot-
ers lawfully exercising their rights of voting at an election.”
Cal. Elec. Code § 18502. The language of this section renders
it applicable only at the time of an election. The mailing of
a letter weeks prior to an election could not have interfered
either with officers holding an election or with voters exercis-
ing their rights at an election. Consequently, the mailing of
the letter could not have constituted a violation of this statute,
and thus could not provide probable cause for the issuance of
the warrant.
Section 18543 makes it a felony to conspire to “fraudu-
lently advise[ ] any person that he or she is not eligible to vote
. . . when in fact that person is eligible.” Cal. Elec. Code
§ 18543. The plain language of the statute criminalizes advis-
ing eligible voters that they are not eligible to vote. Only
United States citizens are eligible to vote. Cal. Const. Art. 2
§ 2. The letter expressly states that “[i]f you are a citizen of
2
While it is possible that a warrant can be held to be valid when an affi-
davit provides probable cause that a law other than the statute specified in
the affidavit has been violated, Meek, 366 F.3d at 713, the government
does not contend that the magistrate could have determined that there was
probable cause to believe that any other statute had been violated.
UNITED STATES v. NGUYEN 3369
the United States, you are kindly asked to participate in the
democratic process of voting.” It goes on to state that those
illegally in the country or “legal residents” cannot legally vote
and may be subject to incarceration and deportation. Because
only U.S. citizens may vote, the letter does not “fraudulently
advise” any eligible voter that he or she is ineligible to vote,
as required to violate section 18543. There is therefore no
basis for concluding that the letter violated section 18543, and
correspondingly, no basis for concluding that there is a fair
probability that the facts alleged in the affidavit constituted a
violation of this statute.
[2] Section 18540 makes it a felony to use any “tactic of
coercion or intimidation, to induce or compel any other per-
son to refrain . . . from voting.” Cal. Elec. Code § 18540(a).
In Hardeman v. Thomas, 208 Cal. App. 3d 153 (1989), the
California Court of Appeal held that “the type of intimidation
envisioned by section [18540]” is not limited to displays or
applications of force, but can be achieved through manipula-
tion and suggestion. Id. at 170; see also Stebbins v. White, 190
Cal. App. 3d 769, 788 (1987). Thus, an individual may violate
section 18540 through subtle, rather than forcefully coercive
means, although this intimidation must be intentional.3 In this
case, the letter presented to the magistrate warned recipients
that if they voted in the upcoming election their personal
information would be collected by a “new computer system,”
and that this information could be provided to organizations
who are “against immigration.” According to the information
supplied in the affidavit, this letter was sent to individuals
identified as targets for the mailing due in part to their status
as foreign-born individuals with Hispanic surnames — that is,
those believed to be Latino immigrants. The affidavit also
3
The statute punishes an individual who uses any of a number of various
means “to induce or compel” an individual to vote or refrain from voting,
not merely those who engage in actions that may have the ultimate effect
of affecting an individual’s decision to vote. Cal. Elec. Code § 18540
(emphasis added).
3370 UNITED STATES v. NGUYEN
informed the magistrate that the letter was mailed by individ-
uals associated with a Republican congressional candidate,
and was sent specifically to voters who registered as Demo-
crats or declined to state their party affiliation. In other words,
the intended recipients of the letter mailed by Nguyen’s cam-
paign were not registered Republicans, but rather individuals
who, as the affidavit stated, “would be expected to favor
[Nguyen’s] Democratic opponent in the upcoming election.”
[3] Although the trier of fact is the ultimate judge of
whether the letter constituted an attempt to intimidate voters,
Hardeman, 208 Cal.App. 3d. at 170, we hold that the contents
of the letter and the circumstances of its distribution were suf-
ficient to allow the magistrate to conclude that there was a fair
probability that the mailing constituted a violation of Califor-
nia Election Code Section 18540. The letter targeted immi-
grant voters with threats that their personal information would
be provided to anti-immigration groups if they exercised their
right to vote, and was mailed by a campaign with a vested
interest in inducing these voters — members of the competing
political party and of a minority group supporting the oppos-
ing candidate — not to vote in the upcoming election. 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.
[4] Despite the fair probability that the mailing of the letter
violated California law, Nguyen was never charged with vio-
lating any provision of the California Election Code. Upon
further investigation, the state may have determined that
Nguyen lacked the necessary scienter to violate the statute in
question or that he was not sufficiently involved with the let-
ter’s creation and mailing to justify prosecution. Even if the
state believed that Nguyen’s conduct did satisfy the elements
of the statute, the Attorney General’s office may have had any
number of reasons for electing not to prosecute the former
candidate, including its exercise of prosecutorial discretion.
The absence of a state prosecution does not signify that
UNITED STATES v. NGUYEN 3371
Nguyen’s conduct did not amount to a violation of the law.
Regardless of the ultimate decision made not to charge
Nguyen with a state offense, the contents of the affidavit pro-
vided a substantial basis for the magistrate to conclude that
there was a fair probability that the mailing of the letter to the
targeted population constituted a tactic of coercion intended
to induce its recipients to refrain from voting. There was
therefore sufficient probable cause to support the issuance of
the warrant to search Nguyen’s home and campaign head-
quarters.
III.
[5] Nguyen also argues that his letter was political speech,
thus entitling it to First Amendment protection. California
Election Code Section 18540 prohibits the intentional intimi-
dation of voters. This court has recognized that laws prevent-
ing intentional intimidation, as “applied to speech whose
communicative impact causes the relevant harm,” are prop-
erly treated as content-based restrictions on speech. United
States v. Cassel, 408 F.3d 622, 626 (9th Cir. 2005). The
Supreme Court in Virginia v. Black, 538 U.S. 343, 360
(2003), has held that “[i]ntimidation in the constitutionally
proscribable sense of the word is a type of true threat.” As
such, it may be regulated by the state without running afoul
of the First Amendment. See United States v. McLeod, 385
F.2d 734, 740 (5th Cir. 1967) (recognizing that otherwise law-
ful activities may be punishable under federal laws against
voting intimidation “if they have the proscribed effect and
purpose”); see also Olagues v. Russoniello, 797 F.2d 1511,
1522 (9th Cir. 1986) (en banc) (recognizing that federal law
prohibits the intentional intimidation of persons voting or aid-
ing someone else to vote), vacated as moot by Russoniello v.
Olagues, 484 U.S. 806 (1987).
[6] California’s prohibition on intentional acts of voter
intimidation is therefore consistent with the state’s power to
regulate true threats. If the targeted distribution of the letter
3372 UNITED STATES v. NGUYEN
by Nguyen’s campaign falls within this prohibition, then it is
speech that is proscribable under the First Amendment. To
justify the issuance of a warrant, however, there need be only
a fair probability that a violation has occurred. As already dis-
cussed, the contents of the letter and the targeting of the spe-
cific class of voters meets this requirement. The warrant was
therefore properly issued.
Conclusion
Although Nguyen was never prosecuted for a violation of
the election laws, in light of the contents of the letter and the
facts surrounding its distribution, there was a fair probability
that the campaign mailing constituted a tactic of intimidation
intended to induce its recipients to refrain from voting. Cal.
Elec. Code § 18540. The order of the district court denying
Nguyen’s motion to suppress is AFFIRMED.