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United States v. Victoriano

United States District Court, D. Nebraska

September 5, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
WILLIAMS VEGA VICTORIANO, Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          Laurie Smith Camp, Senior United States District Judge.

         This matter is before the Court for Findings of Fact and Conclusions of Law pursuant to Federal Rule of Criminal Procedure 23(c), following a nonjury trial held on August 27, 2019. At trial, the United States was represented by Assistant United States Attorneys Jody B. Mullis and Kelli L. Ceraolo. The Defendant, Williams Vega Victoriano, was represented by Assistant Federal Public Defender Michael J. Hansen.

         SUPERSEDING INDICTMENT

         The Superseding Indictment alleges that on or about March 17, 2019, in the District of Nebraska, Defendant Williams Vega Victoriano, while knowingly being an alien illegally and unlawfully in the United States, did knowingly possess in and affecting interstate and foreign commerce, a firearm, to wit, a Taurus G2C 9 mm handgun with serial number TLN51863, said firearm having been shipped and transported in interstate and foreign commerce in violation of 18 U.S.C. §§ 922(g)(5)(A), 924(a)(2). Vega Victoriano pleaded not guilty to the charge.

         FINDINGS OF FACT

         The Court makes the following findings of fact. Any finding of fact that is more properly considered a conclusion of law should be deemed as such. Unless otherwise indicated, all findings of fact relate to the time relevant to the facts alleged in the indictment.

         I. Stipulated Facts

         The parties entered into the following stipulations which are deemed proven and incontroverted. Gov't's Exs. 60-64.

         1. Vega Victoriano was born in Mexico and is a citizen of Mexico. He is not a United States citizen and has never been a United States citizen. He is an alien as defined by 8 U.S.C. § 1101(a)(3) (The term "alien" means any person not a citizen or national of the United States.). Vega Victoriano was an alien, as defined by 8 U.S.C. § 1101(a)(3), during the time period of November 1, 2018, to March 31, 2019.

         2. On November 24, 2018, deputies of the Cass County, Nebraska, Sheriff's Department made contact with Vega Victoriano, while he was not in law enforcement custody, outdoors at a location near Louisville, Nebraska, in Cass County, Nebraska. The deputies arrested Vega Victoriano, took him into law enforcement custody, and transported him to the Cass County jail.

         3. Vega Victoriano was transferred to the custody of Immigration and Customs Enforcement (ICE) on or about November 29, 2018. He remained in ICE custody until he bonded out of ICE custody on or about December 19, 2018.

         4. On March 17, 2019, in Omaha, Nebraska, Vega Victoriano was knowingly in possession of a Taurus 9 mm handgun with serial number TLN51863.

         5. On March 17, 2019, the Taurus 9 mm handgun with serial number TLN51863 was operable; it functioned as designed; and it was able to discharge ammunition.

         6. The Taurus 9 mm handgun with serial number TLN51863 is a firearm as defined by 18 U.S.C. § 921(a)(3).

         7. The Taurus 9 mm handgun with serial number TLN51863 was manufactured in Brazil, outside the United States and the state of Nebraska. The firearm affected interstate and foreign commerce.

         8. On March 17, 2019, Vega Victoriano did not have a permit to carry a concealed handgun as required to carry a concealed handgun in Nebraska under the Concealed Handgun Permit Act, Nebraska Revised Statute Sections 69-2427 to 69-2449. He never applied for a permit to carry a concealed handgun under that Act.

         9. Vega Victoriano never registered a concealable firearm with the Omaha, Nebraska, Police Department as required under Omaha Municipal Code § 20-251 to possess a concealable firearm inside the Omaha, Nebraska, city limits.

         II. Trial Testimony and Evidence

         10. Scott Alan Mollner is a deportation officer with ICE. ICE is a division of the Department of Homeland Security (DHS).

         11. On November 26, 2018, Officer Mollner was notified by officials from the Cass County jail in Cass County, Nebraska, that Vega Victoriano was in their ...


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