United States v. Steven Vargem ( 2014 )

FILED
NOT FOR PUBLICATION MAR 28 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10628
Plaintiff - Appellee, D.C. No. 5:10-cr-00729-EJD-1
v.
MEMORANDUM*
STEVEN LEE VARGEM,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted February 11, 2014
San Francisco, California
Before: REINHARDT and THOMAS, Circuit Judges, and SESSIONS, District
Judge.**
Vargem appeals his conviction for possession of a machine gun, 18 U.S.C.
§§ 922(o) and 924(a)(2), and possession of an unregistered firearm, 26 U.S.C. §§
5841, 5861(d), and 5871. He contends, first, that the district court erred in denying
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
his motion to suppress and, second, that the district court erred in denying him a
Franks hearing. 438 U.S. 154 (1978).1
1. The district court did not err in holding that the magistrate judge who issued
the search warrant had a “substantial basis to conclude that the warrant was
supported by probable cause” that evidence of a crime would be found at Vargem’s
residence. See United States v. Fernandez, 388 F.3d 1199, 1252 (9th Cir. 2004)
(internal quotation omitted). Vargem’s two arguments to the contrary fail. First, the
magistrate judge could reasonably have inferred from the warrant affidavit that
Vargem had been informed of a restraining order prohibiting him from possessing
firearms at his home or elsewhere. Officer Tuell stated in the warrant affidavit that
he had “verified with V[argem]” that Vargem was the subject of a restraining
order, and that the restraining order required him to surrender all firearms. The
remaining facts in the affidavit permitted the inference that some of the many
firearms that Vargem possessed were still in his safe at home. See Cal. Fam. Code
6383(e) (2010) (“The law enforcement officer’s verbal notice of the terms of the
[restraining] order shall constitute service of the order and is sufficient notice.”);
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We address Vargem’s objections to his sentence in a published opinion filed
concurrently herewith.
2
Illinois v. Gates, 462 U.S. 213, 240 (1983) (holding that, in judging the facts
before him in a warrant affidavit, a magistrate may draw “the usual inferences
which reasonable men draw from evidence”) (internal quotation omitted).
Second, Vargem’s argument that California law did not authorize the search
warrant misses the point. The question, for the purpose of the Fourth Amendment,
is whether there was probable cause to believe that Vargem was violating the law
and probable cause to believe that evidence of this violation would be found at his
home. Whether the warrant was authorized under state law regulating the issuance
of warrants is irrelevant. See California v. Greenwood, 486 U.S. 35, 43 (1988)
(“We have never intimated . . . that whether or not a search is reasonable within the
meaning of the Fourth Amendment depends on the law of the particular State in
which the search occurs.”).
2. The district court did not err in refusing Vargem a Franks hearing as
Vargem has failed to make a “substantial preliminary showing” that any statement
in the warrant affidavit was false, let alone knowingly or recklessly so. 438 U.S. at
155–56. Vargem argues that Officer Tuell’s statement in the warrant affidavit that
the restraining order required him to “surrender all firearms” was knowingly or
recklessly false; under California law, a party once restrained must “relinquish” all
3
firearms. Cal. Fam. Code § 6389 (2010). We see no material difference between
the words “relinquish” and “surrender.”
AFFIRMED.
4