USA v. Miguel Vasquez

Filing

FILED OPINION (PAMELA ANN RYMER, RICHARD C. TALLMAN and SANDRA S. IKUTA) AFFIRMED. Judge: PAR Authoring, FILED AND ENTERED JUDGMENT. [7856997]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MIGUEL ANGEL VASQUEZ,
Defendant-Appellant.

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


No. 10-50336
D.C. No.
2:08-cr-01359JHN-1
OPINION

Appeal from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding
Argued and Submitted
July 14, 2011—Pasadena, California
Filed August 15, 2011
Before: Pamela Ann Rymer, Richard C. Tallman, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Rymer

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UNITED STATES v. VASQUEZ

COUNSEL
Martha M. Hall, San Diego, California, for the defendantappellant.
Asha M. Olivas, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

OPINION
RYMER, Circuit Judge:
Miguel Vasquez was found guilty after a bench trial of
being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. § 922(g). On appeal, he challenges his
conviction and sentence. We have jurisdiction under 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm.

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I
On October 17, 2008, the government sought and obtained
a warrant to search the home of Miguel Vasquez and seize
evidence of violations of the Racketeer Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. § 1962. The
affidavit accompanying the search warrant was common to
the search of 121 residences of members of the Mongols
Motorcycle Club, a motorcycle gang engaged in racketeering
activity, including murder, drug trafficking, robberies, hate
crimes, and theft of motorcycles.
According to the affidavit, at the top of the Mongols organization was the “Mother Chapter,” which directed the activities of the local chapters. Officers, specifically the president,
vice-president, secretary/treasurer, and sergeant-at-arms, led
the local chapters. The affiant noted that “the Mongols are
different from many other criminal enterprises in that they
keep extensive written documentation of their rules and activities.” These documents, including minutes of meetings and
financial records, often reflected criminal activity. Officers
typically maintained these documents in a secure location
such as their residences.
The affidavit names Vasquez in three places. Vasquez’s
residence is included in a table of the residences to be
searched. The last column of the table, titled “Probable cause
section discussed below” lists “records custodian” for
Vasquez. The records custodian section states that “this affidavit is made in support of warrants to search for and seize
the evidence of violations of [RICO],” and lists various qualifying predicate acts under RICO. It then lists the persons to
be searched under this section, including Vasquez, and the
items to be seized at their residences, including “[a]ll notes or
minutes of meetings conducted by the Mongols.”
Finally, Vasquez is named in a list of officers of Mongols
chapters. Under the heading “Hemet Chapter” is the entry

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“Miguel Vasquez — President.” The affidavit also notes that
the summary of the Mongols officers is based on information
provided by undercover agents and confidential informants.
On October 21, agents executed the warrant. An agent
searched the garage. He located sweat pants on the top shelf
of a metal shelving unit situated on the west side of the
garage. After retrieving the sweat pants, the agent took out
socks from each of the pockets. An unloaded firearm (a
Beretta) was inside one sock. The other sock contained two
loaded magazines that fit the Baretta. The second shelf of the
unit contained a stereo, a digital camera, and some photos.
The photos were of Mongols and some included Vasquez. At
the end of the shelving unit, the agent located a t-shirt, which
was printed with the name “Miggy,” a known alias of
Vasquez.
The north wall of the garage contained another metal shelving unit. From the top shelf, the agent retrieved a black canvas
bag. Inside the black bag was a Cobray Mac-11 firearm and
several hundred rounds of ammunition. None of the ammunition fit the Mac-11. A black cooler airbrushed with Mongols
insignias lay next to this shelving unit. It was unlocked and
inside were Hemet Chapter bylaws, a member phone list, and
photographs of prospective Mongols members.
Vasquez was indicted on one count of being a felon in possession of a firearm or ammunition. In the following months,
the parties litigated a motion to suppress. Vasquez argued
there was insufficient probable cause in the search warrant
particularized to him and also sought a Franks1 hearing
because, as he alleged, the affidavit falsely stated that he was
president of the Hemet Chapter. The district court held any
falsity was immaterial because if Vasquez was the treasurer,
instead of the president, there was still probable cause to
search his home. The court also held that there was “probable
1

Franks v. Delaware, 438 U.S. 154 (1978).

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cause aplenty” in the search warrant and denied the motion to
suppress. When the case was transferred to Judge Nguyen,
Vasquez filed a motion to reconsider, which was denied.
Judge Nguyen held that even deleting from the affidavit the
statement that Vasquez was president, he was still an officer
and probable cause remained.
At the bench trial, the agent who conducted the search,
along with Vasquez’s wife, sister, and boss, testified. He was
found guilty. The Pre-Sentence Report (PSR) calculated a
base offense level of 22 and a criminal history category of III
for a Sentencing Guidelines range of 51-63 months. The PSR
recommended a sentence of 36 months because his criminal
history was overstated. His felony convictions were from
1992, when he was 18, and he had been an almost model citizen since then. At the sentencing hearing, the judge agreed
with the PSR and reduced his criminal history category to II,
which represented a Guidelines range of 46-57 months. She
then imposed a sentence of 36 months. Vasquez now appeals.
II
Vasquez challenges his conviction on two grounds: the adequacy of the search warrant and the sufficiency of the evidence. Neither challenge is persuasive.
A
Vasquez argues that evidence of the guns and ammunition
should have been suppressed because the warrant was invalid.
We hold that based on the affidavit accompanying the warrant, the magistrate judge had a substantial basis for concluding there was a fair probability that evidence of a crime would
be found in Vasquez’s home. See United States v. Collins,
427 F.3d 688, 691 (9th Cir. 2005); United States v. ChavezMiranda, 306 F.3d 973, 978 (9th Cir. 2002). The stated basis
for the search was that Vasquez was the president of a Mongols chapter. The chapter presidents maintained organiza-

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tional records in their homes, including minutes of meetings.
Such records documented the illegal activities of the Mongols. The affidavit provided support for each of these assertions.
[1] There was probable cause to believe Vasquez was president of the Hemet Chapter. Cf. United States v. Chesher, 678
F.2d 1353, 1362 (9th Cir. 1982). The affidavit notes that
undercover agents and confidential informants collected
phone lists and rosters. They also became officers and
attended all-officer and all-member meetings. At these meetings, they were able to observe those who were officers.
While there is nothing specific in the affidavit about how any
of these informants learned that Vasquez was an officer, the
magistrate judge could have reasonably inferred that the
knowledge was obtained through attendance at meetings or
the lists collected. See Chavez-Miranda, 306 F.3d at 978
(court must give “due weight to inferences drawn from [the]
facts by resident judges and local law enforcement officers”
(internal quotation marks omitted)). Notably, Vasquez does
not challenge the reliability or credibility of any informant or
that their hearsay was insufficiently corroborated. Cf. United
States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006).
[2] Next, the magistrate judge properly concluded that
notes would be found in Vasquez’s home. Vasquez is incorrect to insist that there be direct evidence that he was seen taking or possessing notes, because the magistrate judge may
make reasonable inferences. United States v. Dubrofsky, 581
F.2d 208, 213 (9th Cir. 1978). The informants, who were
members or leaders of various Mongols chapters, observed
others maintaining notes of activities or themselves participated in keeping notes. The only inference necessary is that
Vasquez was likely to maintain similar notes as part of his
leadership of the Hemet Chapter. This inference is especially
reasonable given the evidence that the Mongols leaders
adhered to organizational rules that required presidents to
maintain club documents, including minutes.

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Lastly, the affidavit provides sufficient probable cause to
believe the records would contain evidence of a crime. In
United States v. Rubio, 727 F.2d 786, 795 (9th Cir. 1983), as
amended, this court reversed convictions of members of the
Hells Angels Club because the warrants failed to support
probable cause as to the nexus requirement. The search warrants sought indicia of membership at the houses of alleged
members. These indicia of membership, though, contained no
evidence of criminal activity, unless the entire enterprise was
wholly illegitimate, which the Hells Angels Club was not. Id.
at 793.
[3] The warrant here served a different purpose. It sought
club documents not for their indication of membership in the
Mongols but because these documents detailed illegal activity. The affidavit described how the Mongols organization
conducted its affairs through prohibited racketeering activity,
including engaging in transactions of narcotics and firearms.
The Mongols kept notes and minutes of their meetings in
which they discussed illegal activity. Thus, the magistrate
judge had a substantial basis for concluding that the documentation, maintained at the residences of officers, would contain
evidence of criminal activity.
[4] Vasquez also attacks the warrant as an unconstitutional
general warrant. See United States v. Bridges, 344 F.3d 1010,
1015-16 (9th Cir. 2003). The prohibition of “general warrants” imposes a particularity limitation, requiring warrants to
specify the items to be seized and the locations to be searched.
United States v. Weber, 923 F.2d 1338, 1342 (9th Cir. 1990).
It prevents general, exploratory searches. Id.; Chesher, 678
F.2d at 1359-60 (noting that the “issue of probable cause must
be distinguished from [ ] the issue of the warrant’s possible
unconstitutionality as a general warrant” but declining to
reach the latter issue).
[5] In determining whether a description is sufficiently
precise, we have focused on:

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(1) whether probable cause exists to seize all items
of a particular type described in the warrant, (2)
whether the warrant sets out objective standards by
which executing officers can differentiate items subject to seizure from those which are not, and (3)
whether the government was able to describe the
items more particularly in light of the information
available to it at the time the warrant was issued.
United States v. Stubbs, 873 F.2d 210, 211 (9th Cir. 1989)
(internal quotation and alterations omitted). We have
described the probable cause to seize Mongols documents,
including the minutes of meetings. There is no indication that
the government was able to describe these minutes in any
more detail prior to the search. The government here did not
seek to seize all documents or even all meeting notes but
rather only Mongols documents, including notes of Mongols
meetings. Cf. VonderAhe v. Howland, 508 F.2d 364, 370 (9th
Cir. 1974) (unconstitutional for warrant to authorize “a massive re-examination of all records” where “government knew
exactly what it needed and wanted”); United States v. SDI
Future Health, Inc., 568 F.3d 684, 704-05 (9th Cir. 2009)
(portion of search warrant authorizing the search for “Documents relating to non-privileged internal memoranda and Email” invalid when the government’s interest limited to communications related to sleep studies).
[6] In United States v. Apker, 705 F.2d 293 (8th Cir. 1983),
modified on other grounds sub nom. United States v. Fitzgerald, 724 F.2d 633 (8th Cir. 1983) (en banc), the Eighth Circuit
struck down portions of a search warrant issued against Hells
Angels Club members for failing to satisfy the particularity
requirement. See id. at 299-303. The warrant sought “to
obtain evidence of just one fact—membership in the Hells
Angels.” Id. at 302. Here, the warrant sought minutes of meetings not to show membership in the Mongols but because
these documents contained evidence of criminal activity.
Apker, then, is inapposite, and we conclude the warrant

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described the documents to be seized with sufficient particularity.
Vasquez’s last challenge to the warrant is that the district
court erred in denying him a hearing to establish that the affidavit falsified material information. See Franks v. Delaware,
438 U.S. 154 (1978). The district court held that even if the
affiant recklessly listed Vasquez as the president, it was
immaterial because Vasquez’s undisputed status as an officer
provided sufficient probable cause to search his home. See id.
at 171-72.
[7] Assuming the statement that Vasquez was president
was false, we must purge it and determine whether what is left
justifies issuance of the warrant. Ewing v. City of Stockton,
588 F.3d 1218, 1224 (9th Cir. 2009). We may not consider
evidence outside the affidavit. Baldwin v. Placer Cnty., 418
F.3d 966, 971 (9th Cir. 2005). Vasquez argues the entire statement “Miguel Vasquez — President” must be struck, resulting in no evidence to support the search of his home. We do
not read the affidavit in such a technical manner. See Illinois
v. Gates, 462 U.S. 213, 235-36 (1983).
[8] The statement summarizes the assertion that Vasquez
was an officer of the Mongols, namely, the president. After
striking out the fact that he was the president, we are left only
with the fact that he was an officer. We must ask whether his
status as an officer would have justified issuance of the warrant. It would. According to the affidavit, officers other than
the president also maintained records, in their homes, that
documented illegal activity. Regardless of Vasquez’s title, his
status as an officer allows the search of his home. Any falsity,
then, about his status as the president was immaterial.
Because the warrant was valid, we need not consider
whether the officers acted in good faith in relying on it. See
United States v. Leon, 468 U.S. 897, 920 (1984).

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B
[9] Vasquez next challenges his conviction for a lack of
sufficient evidence. The government was required to show
beyond a reasonable doubt that he constructively possessed
the firearms. 18 U.S.C. § 922(g)(1); United States v. Tucker,
641 F.3d 1110, 1118-19 (9th Cir. 2011). “To prove constructive possession, the government must prove a sufficient connection between the defendant and the contraband to support
the inference that the defendant exercised dominion and control over the firearms.” United States v. Carrasco, 257 F.3d
1045, 1049 (9th Cir. 2001) (internal quotation marks omitted).
“Dominion and control” means Vasquez had knowledge of
the weapons and the power and intent to exercise control over
them. United States v. Terry, 911 F.2d 272, 278 (9th Cir.
1990). The government may show such knowledge and intent
through circumstantial evidence. United States v. Thongsy,
577 F.3d 1036, 1041 (9th Cir. 2009).
[10] The guns were found in Vasquez’s garage. In close
proximity, including on the same or nearby shelves, were
located many items belonging to Vasquez. These included
several photographs of Vasquez, and in some of them he was
wearing Mongols paraphernalia. There were also other Mongols items on the shelves, which his sister admitted belonged
to him. Finally, there were t-shirts in the area that belonged
to him. One t-shirt was labeled “Miggy,” which was his nickname. T-shirts found in his bedroom closet resembled the tshirts in the garage. Overall, there was sufficient evidence for
a trier of fact to conclude that Vasquez constructively possessed the firearms. See Terry, 911 F.2d at 278 (constructive
possession where gun found in closet shared by defendant and
wife surrounded by his clothes and men’s boots); Tucker, 641
F.3d at 1119 (constructive possession of gun where defendant
was sole occupant of bedroom and only user of its closet).
Vasquez’s argument that there was no evidence he owned
or had touched the firearms or that anyone had ever seen him

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with the firearms is unavailing. The government did not need
to show ownership or actual possession. Similarly, we are not
required to believe his assertion that he was simply allowing
someone else to store the weapons in his garage and did not
intend to exercise control over them. United States v. Nevils,
598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc) (noting we
must view the facts in a light most favorable to the prosecution).
III
[11] Vasquez argues his sentence was substantively unreasonable. According to him, the district judge should have
imposed a lower sentence because he has been a productive
member of society, he had good motives in storing the weapons, and the higher sentence resulted in unwarranted disparities. We hold the judge did not abuse her discretion in
imposing a sentence significantly below the Guidelines range.
Cf. United States v. Blinkinsop, 606 F.3d 1110, 1116 (9th Cir.
2010) (noting a sentence within the Guidelines range probably
is reasonable).
As to his being a productive member of society, Vasquez
seems to be rearguing his leniency plea. See id. (noting court
unlikely to reverse a sentence when a defendant simply “reargues his leniency plea from district court”). The judge considered Vasquez’s positive characteristics, reduced his criminal
history category from III to II, and then sentenced him below
the Guidelines range. She was not required to do more.
The judge concluded that even if she accepted Vasquez’s
version of the events evincing his good motives, the seriousness of his offense—storing two firearms and hundreds of
rounds of ammunition after being convicted of two felonies—
trumped it. The judge did not act unreasonably in emphasizing the seriousness of the offense. See United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc) (noting we may

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not reverse simply because we would have imposed a different sentence).
[12] Vasquez’s final argument is that his sentence resulted
in unwarranted disparities because several Mongols who were
eventually prosecuted for RICO violations were given lower
sentences. Specifically, according to him, thirty-three defendants received lower sentences and twenty-two higher. Seventeen defendants received probation, which is the sentence
Vasquez sought. Even if these disparities are assumed to be
unwarranted, this factor alone would not result in an unreasonable sentence. The need to avoid unwarranted sentences is
only one factor the judge must consider. United States v.
Marcial-Santiago, 447 F.3d 715, 719 (9th Cir. 2006). Here,
the judge “exercised sound discretion” to ensure the punishment fit the crime by weighing the seriousness of the offense
with all the mitigating factors and sentencing Vasquez to a
significantly below-Guidelines term of imprisonment. See id.
The sentence was reasonable.
AFFIRMED.