United States v. Vasquez

654 F.3d 880, 2011 U.S. App. LEXIS 16837, 2011 WL 3559934
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 15, 2011
Docket10-50336
StatusPublished
Cited by20 cases

This text of 654 F.3d 880 (United States v. Vasquez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Vasquez, 654 F.3d 880, 2011 U.S. App. LEXIS 16837, 2011 WL 3559934 (9th Cir. 2011).

Opinion

654 F.3d 880 (2011)

UNITED STATES of America, Plaintiff-Appellee,
v.
Miguel Angel VASQUEZ, Defendant-Appellant.

No. 10-50336.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2011.
Filed August 15, 2011.

*881 Martha M. Hall, San Diego, CA, for defendant-appellant.

Asha M. Olivas, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee.

Before: PAMELA ANN RYMER, RICHARD C. TALLMAN, and SANDRA S. IKUTA, Circuit Judges.

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.

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, *882 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 "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 Beretta. 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 Franks[1] 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 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 *883 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. Chavez-Miranda, 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 organizational 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.

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.

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Cite This Page — Counsel Stack

Bluebook (online)
654 F.3d 880, 2011 U.S. App. LEXIS 16837, 2011 WL 3559934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-vasquez-ca9-2011.