Unpublished Disposition, 930 F.2d 30 (9th Cir. 1991)

MEMORANDUM^* 

Defendant Baldev Singh Sangha appeals his conviction of conspiring to create and supply false immigration documents, aiding and abetting the creation and supply of false immigration documents, and aiding and abetting the filing of false immigration documents in violation of 8 U.S.C. 1160(b) (7) (A) (i) and (ii) and 18 U.S.C. 2 and 371, respectively. He contends that the search warrant leading to his conviction was overbroad and that his due process rights were violated at sentencing. Because we conclude that the search warrant survives constitutional attack, we affirm the conviction. However, because the trial judge did not adhere strictly to the Federal Rules of Criminal Procedure in sentencing the defendant, we vacate and remand for resentencing.

* Sangha contends that the officers' search warrant did not describe with sufficient particularity the items to be searched and seized from his home. Whether a search warrant describes with particularity the items to be seized is reviewed de novo. United States v. Rabe, 848 F.2d 994, 997 (9th Cir. 1988).

The search warrant authorized the seizure of the following items:

Immigration forms I-705 and I-700 and related documents; copies of immigration forms I-705 and I-700 and related documents; affidavits attesting to employment of residency; typewriters, computer software or hardware used in the preparation of fraudulent Immigration Forms I-705 and I-700 and all telephone books, photographs, utility bills, telephone bills and all papers indicating ownership or occupancy of 13526 Elm Street in Caruthers, California.

Excerpt of Record ("ER") 1.

Sangha contends that the warrant effectively authorized the seizure of all immigration-related documents without limiting the warrant to the papers of any specific persons, time period or type of immigration documents. In addition, he argues that the Affidavit in Support of the Search Warrant, ER 13, was inadequate to justify such a broad seizure. The affiant stated that while a private individual was purchasing immigration forms, he noted a variety of immigration-related documents on Sangha's desk. The affiant stated that he had been informed that 50 applications bearing Sangha's signature had been intercepted by government officials for suspicion of fraud because they were similar to other applications that had been proven fraudulent. As with the fraudulent documents, the affiant stated that the applications held by Sangha 1) were from East Indians; 2) were for special agricultural worker adjustments; 3) were mostly from East Indians now living in and around New York City; and 4) indicated that the applicants had just enough time in agricultural employment to qualify for adjustment. Such information, Sangha argues, was insufficient to justify the breadth of the search warrant.

In evaluating a search warrant, we have stated that:

[H]ow specific the warrant must be varies with the circumstances, including, '(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 [that] are not; and (3) whether the government was able to describe the items more particularly in light of the information available at the time the warrant was issued."

United States v. McLaughlin, 851 F.2d 283, 285 (9th Cir. 1988) (quoting United States v. Spolotro, 800 F.2d 959, 963 (9th Cir. 1986).

We conclude that the search warrant was sufficiently precise. As we stated in United States v. Hernandez-Escarsega, 886 F.2d 1560, 1567 (9th Cir. 1989), " ' [a] warrant need only be reasonably specific in its description of the objects of the search and need not be elaborately detailed.' " (quoting United States v. Hayes, 794 F.2d 1348, 1354 (9th Cir. 1986) (citation omitted), cert. denied, 479 U.S. 1086 (1987). The warrant in dispute identified the type of immigration papers to be seized, and did not allow for "exploratory rummaging in a person's belongings." Rabe, 848 F.2d at 997 (quotation omitted).

Moreover, we have upheld search warrants that were far less specific than the one in the case at bar. See Rodriguez, 869 F.2d at 486 (upholding warrant allowing for search of "articles of personal property tending to establish the existence of a conspiracy to sell cocaine, consisting of and including personal telephone books, address books...."); United States v. Hayes, 794 F.2d 1348, 1350 (9th Cir. 1986) (authorizing seizure of controlled substances and "all records which document the purchasing, dispensing and prescribing of controlled substances, including, but not limited to, records contained in patient charts and all relevant records required to be maintained ... patient logs, appointment books....").

Moreover, the government established probable cause to believe that Sangha was engaged in fraudulent activity, which justified the seizure of the immigration forms and related documents. The government proffered information from a confidential informant that Sangha was selling East Indians fraudulent immigration documents. In addition, government officials monitored a call between the informant and Sangha during which Sangha allegedly agreed to provide the informant with fraudulent employment documents. In addition, the government had information that the Immigration and Naturalization Service ("INS") had intercepted about 50 applications signed by the defendant, which were similar to other documents that were found fraudulent. Such information, together with the particularity of the warrant, places it beyond constitutional attack.

We reject Sangha's contention that the items seized went beyond the items authorized in the warrant. Although Sangha claims that the officers improperly seized a box of miscellaneous documents, a box of W-2 forms, a desk diary, an envelope containing a letter and a checkbook, such items fell within the terms of the warrant. Moreover, as we stated in United States v. McLaughlin, 851 F.2d 283, 286 (9th Cir. 1988), " [a] search warrant may be used, not only to gather evidence of a criminal activity, but also to gather evidence of who controlled the premises suspected of connection with criminal acts."

II

Sangha contends that the trial judge either relied improperly on two paragraphs of the Probation Department's Presentence Investigation Report or did not make adequate findings of fact as to their reliability in violation of Fed. R. Crim. P. 32(c) (3) (D).¹  To comply with the federal rule, the trial judge must make a finding concerning the controverted information or determine that no such finding is necessary because the controverted matters will not be considered in sentencing. See United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc). The sentencing court is required to append to the Presentence Report a written record of the findings and determinations. See id.

Paragraph 10 of the Presentence Report stated that Sangha was responsible for an estimated 800 fraudulent applications. Paragraph 11 of the Report stated that Sangha admitted to his Probation Officer that he was involved in as many as 200 fraudulent applications.

Sangha claims first that the district court improperly applied a "substantial evidence" test to determine the validity of the factual allegations contained in the Report, rather than a "preponderance of the evidence" or a "clear and convincing" standard of proof. We reject Sangha's claim because " ' [s]entencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all.' " See United States v. Fernandez-Vidana, 857 F.2d 673, 675 (9th Cir. 1988) (quoting McMillan v. Pennsylvania, 477 U.S. 79 (1986). Similarly, in Jones v. United States, 783 F.2d 1477, 1481 (9th Cir. 1986), we stated that while " ' [a] rational penal system must have some concern for the probable accuracy of the informational inputs in the sentencing process,' [we would] not interfere with the trial judge's broad discretion to decide not only the relevance but the reliability of sentencing information." (quoting United States v. Weston, 448 F.2d 626, 634 (9th Cir. 1971).

Sangha also contends that the trial judge relied improperly on California Employment Development Department Records ("Records"), which allegedly supported the factual allegations set forth in the Presentence Report. Although the government agreed that the Records should not be used because it could not prove that such Records actually belonged to the defendant, see ER 18, Sangha argues that it is unclear whether the trial judge relied on such Records in making his sentencing determination. Accordingly, he contends the sentence must be vacated and remanded.

In rejecting the defendant's allegations about the factual accuracy of the Presentence Report, the trial judge issued a Memorandum of Decision listing the evidence he relied on, including a declaration by an INS agent, Larry Robbins. The judge found that the declaration proved that extensive records were seized that customarily are used by persons engaged in such fraudulent activity; that 240 applications contained a fraudulent address; and that a comparison of the records filed by Sangha with the California Employment Development Department with the applications filed by Sangha revealed that Sangha did not indicate that the persons for whom he signed adjustment applications were not registered as California employees. See ER 16. Based on this information, the trial judge concluded that the allegations contained in Paragraph 10 of the Report had a factual basis.

From the trial judge's own memorandum, it appears possible that he relied on the controverted Records, at least in part, in making such a determination. Asked by the defense counsel during the sentencing hearing not to consider the Records, the trial judge responded ambiguously that he had "considered that and rejected it." Record Transcript at 4. Although in the past such ambiguous statements might not have required a remand, see United States v. Ibarra, 737 F.2d 825 (9th Cir. 1984) (ambiguous statements by trial judge did not require a remand), we held en banc in Fernandez-Angulo, 897 F.2d at 1516, that strict compliance with Rule 32(c) (3) (D) is required.

If the district court states that the controverted matters will not be considered in imposing sentence, the sentencing record must unambiguously reflect that the district court placed no reliance on the controverted matters. If the record is ambiguous in this regard, the sentence must be vacated and remanded for resentencing.

Id. at 1516 n. 2.

Because the record is ambiguous as to whether the trial judge relied improperly on the Records, we vacate the sentence and remand to the district court for resentencing.

AFFIRMED in part, VACATED and REMANDED.