The Computer System, Voter Intimidation and Obstruction of Justice

After Tan Duc Nguyen was convicted in federal court of obstruction of justice in violation of 18 U.S. Code § 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”, he appealed.  U.S. v. Tan Duc Nguyen, __ F.3d __, 2012 WL 974995 (U.S. Court ofAppeals for the 9th Circuit 2012). 

Nguyen argued that because the search warrant that led to the discovery of evidence used against him in the prosecution was not supported by probable cause, the district court judge should have granted his motion to suppress.  U.S. v. Tan Duc Nguyen, supra.

This, according to the opinion, is how the prosecution arose: 

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 had registered as Democrats or `decline to state.’ The letter was written in Spanish and, among other things, advised recipients `there is no incentive for voting in this country.’

They were informed that if they voted in the upcoming election . . .their personal information would be collected by a newly implemented government computer system, and 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 . . . after receiving complaints regarding this letter. . . . [It] ultimately led agents to Tan Nguyen, the Republican candidate for U.S. 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.

U.S. v. Tan Duc Nguyen, supra.

Agents from the California Attorney General's office interviewed Nguyen on October 19, 2006. U.S. v. Tan Duc Nguyen, supra.  He admitted “having limited knowledge of the letter prior to its mailing, “ but said he believed “it was created and distributed by an acquaintance, Mark Nguyen, also known as `Mark Lam,’ and sent independently from the campaign. U.S. v. Tan Duc Nguyen, supra. Shannon Williams, the agent in charge, did not believe Nguyen's account of the letter and sought a warrant to search his home and campaign headquarters. U.S. v. Tan Duc Nguyen, supra.

In the affidavit supporting the application for 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.’” U.S. v. Tan Duc Nguyen, supra.  The affidavit included a number of facts that linked Nguyen and his campaign to the letter. U.S. v. Tan Duc Nguyen, supra. The facts alleged in the affidavit included 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. [It] also included a statement from an employee of the company that provided the targeted mailing list used, informing agents the list had been requested by Nguyen.

The affidavit noted the agent had been advised by . . . the Attorney General's office that the letter `could constitute a violation of [California] Election Code §§ 18540, use of threats to influence voting, 18502, interference with an election, and 18543, challenging a person's right to vote.’ Attached to [it] 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.

U.S. v. Tan Duc Nguyen, supra. 

The state court magistrate issued the warrant, state agents searched Nguyen’s home and campaign headquarters, “seized documents and computers, and found emails showing greater involvement by [him] in the drafting and mailing of the letter than he had previously acknowledged.”   U.S. v. Tan Duc Nguyen, supra.  Ultimately, the state did not file charges; in a May, 2007 press release, the California Attorney General said the state did not intend to prosecute Nguyen.  U.S. v. Tan Duc Nguyen, supra. 

In October of 2007, after “the election took place and Nguyen lost his bid to unseat Sanchez, a federal investigation was” opened. U.S. v. Tan Duc Nguyen, supra.  Federal agents did not find “any new information or evidence related to the sending of the letter” and neither Nguyen nor “any of his associates” were charged with violating federal election law. U.S. v. Tan Duc Nguyen, supra.  Nguyen was, as noted above, charged with obstruction of justice in violation of 18 U.S. Code § 1512(b)(3), for failing to “disclose to state agents the full extent of his knowledge regarding the creation and mailing of the letter at issue.” U.S. v. Tan Duc Nguyen, supra.  

Section 1512(b)(3) makes it a federal crime to “hinder, delay, or prevent the communication to a [federal] law enforcement officer . . . of the United States of information relating to the commission or possible commission of a Federal offense”.  Federal authorities claimed 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].’” U.S. v. Tan Duc Nguyen, supra.  

Nguyen didn’t challenge the charge on appeal; instead, he claimed the warrant that led to evidence that was used against him was not based on probable cause.  U.S. v. Tan Duc Nguyen, supra.  If that was true, it would mean the evidence should have been suppressed which, I’m guessing, would have made it difficult or even impossible for prosecutors to have obtained a conviction.  U.S. v. Tan Duc Nguyen, supra.  

The Court of Appeals began its analysis of his argument by noting that a warrant is “validly issued if there is a substantial basis for the magistrate's conclusion that `given all the circumstances set forth in the affidavit. . . there is a fair probability that . . . evidence of a crime will be found in a particular place.’” U.S. v. Tan Duc Nguyen, supra (quoting Illinois v. Gates, 462 U.S. 213 (1983)).  Nugyen did not claim the magistrate “lacked a sufficient basis to conclude evidence pertaining to the creation and mailing of the letter could be found at his home and campaign headquarters.”  U.S. v. Tan Duc Nguyen, supra. He argued that mailing the letter “did not amount to a violation of any law, and, consequently, could not provide a substantial basis for concluding there was probable cause to believe a crime had been committed.”  U.S. v. Tan Duc Nguyen, supra.  

The Court of Appeals then pointed out that in her application for the warrant, Williams “sought no more than evidence that would connect Nguyen to the mailing of the letter, and did not suggest evidence of further criminal activity could be found in the locations to be searched.”  U.S. v. Tan Duc Nguyen, supra.  It noted that the warrant “related only to the letter” and authorized agents 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.’” U.S. v. Tan Duc Nguyen, supra.  It found that since mailing the letter was “the only act alleged to have constituted a crime,” the probable cause determination had to be based on the “purported illegality” of the letter. U.S. v. Tan Duc Nguyen, supra.  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, there was no probable cause, and the warrant was invalid.”  U.S. v. Tan Duc Nguyen, supra. 

In her affidavit, Agent Williams “listed three provisions she believed the letter `could’ have violated: California Election Code §§18502, 18543, and 18540.”  U.S. v. Tan Duc Nguyen, supra.  Section 18502 makes it a crime to interfere with “officers holding an election or conducting a canvass, or with the voters lawfully exercising their rights of voting at an election.”  U.S. v. Tan Duc Nguyen, supra.  The Court of Appeals found that since mailing a letter “weeks prior to an election” could not have interfered either with officers holding an election or with voters exercising their rights at an election, mailing this letter “could not have constituted a violation of this statute, and thus could not provide probable cause” for issuing the warrant.  U.S. v. Tan Duc Nguyen, supra. 

Section 18543 makes it a felony to conspire to “fraudulently advise[ ] any person that he or she is not eligible to vote . . . when in fact that person is eligible.” U.S. v. Tan Duc Nguyen, supra. The Court of Appeals noted that (i) the “plain language of the statute criminalizes advising eligible voters that they are not eligible to vote” and (ii) “[o]nly United States citizens are eligible to vote.” U.S. v. Tan Duc Nguyen, supra (citing California Constitution Article 2 § 2).  And it explained that the letter at issue here

expressly states that `[i]f you are a citizen of 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 § 18543. There is therefore no basis for concluding that the letter violated §18543, and . . . no basis for concluding there is a fair probability that the facts alleged in the affidavit constituted a violation of this statute.

U.S. v. Tan Duc Nguyen, supra.

The court then examined the third provision:  California Election Code § 18540, which makes it a felony to “use any `tactic of coercion or intimidation, to induce or compel any other person to refrain . . . from voting.’” U.S. v. Tan Duc Nguyen, supra.  It noted that in Hardeman v. Thomas, 208 Cal. App.3d 153, 256 Cal. Rptr. 158 (1989), the California Court of Appeals held that the type of intimidation § 18540 encompasses “is not limited to displays or applications of force, but can be achieved through manipulation and suggestion.”  U.S. v. Tan Duc Nguyen, supra.

The court pointed out that the letter in this case (i) was sent to “foreign-born individuals with Hispanic surnames—that is, those believed to be Latino immigrants”; (ii) was mailed by  “individuals associated with a Republican congressional candidate” and (iii) was sent “specifically to voters who registered as Democrats or declined to state their party affiliation.” U.S. v. Tan Duc Nguyen, supra.

The intended recipients, therefore, were  “individuals who, as the affidavit stated, “`would be expected to favor [Nguyen's] Democratic opponent in the upcoming election.’” U.S. v. Tan Duc Nguyen, supra. The Court of Appeals found that the “contents of the letter and the circumstances of its distribution” were enough to allow the state magistrate to find there was probable cause to believe that the mailing constituted a violation of § 18540 because the letter targeted

immigrant 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 opposing candidate -- not to vote in the upcoming election.

U.S. v. Tan Duc Nguyen, supra.

The court also found that the lack of a state prosecution did not undermine the existence of probable cause to believe § 18540 had been violated:

Upon further investigation, the state may have determined Nguyen lacked the necessary scienter to violate the statute . . . or . . .was not sufficiently involved with the letter's creation and mailing to justify prosecution. Even if the state believed 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 Nguyen's conduct did not amount to a violation of the law. . . . There was . . . sufficient probable cause to support the issuance of the warrant to search Nguyen's home and campaign headquarters.

U.S. v. Tan Duc Nguyen, supra.

The Court of Appeals therefore affirmed Nguyen’s conviction and his sentence of “twelve months and one day in prison.”  U.S. v. Tan Duc Nguyen, supra.