Detention Order — United States v. Daniel Nguyen (Northern District of California, Document 15)

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Detention order in United States v. Daniel Nguyen, Case No. 24-mj-71474-MAG-1 (LB), in the United States District Court for the Northern District of California, filed October 25, 2024. It states that the district of Massachusetts has charged the defendant with transmitting threats in interstate commerce to two Boston-based companies, in violation of 18 U.S.C. § 875(c), which carries a five-year maximum sentence, and that the government moved for detention on grounds of danger to the community and a serious risk of flight. The Court states that it detains Mr. Nguyen because it cannot fashion conditions to address the safety of the community, although it could fashion conditions to address any standalone risk of flight. The order flags the issue of Mr. Nguyen's competency.

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“Detention Order — United States v. Daniel Nguyen (Northern District of California, Document 15).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-3-24-mj-71474-dkt-15-n-d-cal-d4c1d55e70/, SHA-256 535c721119d8f44161856835bf368b031057f626590a935b422416411cd9fb9b.

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Case 3:24-mj-71474-MAG Document 15 Filed 10/25/24 Page 1 of 14

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA

10 San Francisco Division

11 UNITED STATES OF AMERICA, Case No. 24-mj-71474-MAG-1 (LB)
12 Plaintiff, DETENTION ORDER

United States District Court
13 v.

14 DANIEL NGUYEN,
15 Defendant.

Northern District of California
16

17 INTRODUCTION

18 The district of Massachusetts has charged the defendant Daniel Nguyen with transmitting

19 threats in interstate commerce to two Boston-based companies that he would shoot and kill their

20 employees, in violation of 18 U.S.C. § 875(c), which carries a five-year maximum sentence. 1 The

21 government moved for detention on the grounds of danger to the community and a serious risk of

22 flight. The government must establish the risk of non-appearance by a preponderance of the

23 evidence, and it must establish danger to the community by clear and convincing evidence. 18

24 U.S.C. § 3142(f)(2)(B); United States v. Motamedi, 767 F.2d 1403, 1407 (9th Cir. 1985). An issue

25 is whether the offense, which carries a five-year maximum sentence, entitles the government to a

27
1
Notice of Removal & Compl. – ECF No. 1 at 1–2, 5–11. Citations refer to material in the Electronic
28 Case File (ECF); pinpoint citations are to the ECF-generated page numbers at the top of documents.

ORDER – No. 24-mj-71474-MAG-1 (LB)
Case 3:24-mj-71474-MAG Document 15 Filed 10/25/24 Page 2 of 14

1 detention hearing and whether the government was in any event entitled to a hearing based on its

2 proffer that Mr. Nguyen posed a serious risk of flight. Even if the crime is not a crime of violence,

3 the government was entitled to a hearing. The court detains Mr. Nguyen because it cannot fashion

4 conditions to address the safety of the community (although it could fashion conditions to address

5 any standalone risk of flight). At the end of the order, the court flags the issue of Mr. Nguyen’s

6 competency.

7 STATEMENT

8 The complaint describes Mr. Nguyen’s alleged conduct: he left five voicemails at two Boston-

9 based companies in January and February 2024, threatening to kill their employees by shooting

10 them with an AK-47 and a Glock. In two voicemails, he identified himself as an investor. 2 The

11 FBI identified Mr. Nguyen as the caller from his mobile-phone records and ultimately seized his

12 mobile phone when they executed a search warrant at his San Francisco residence on September 4,

United States District Court
13 2024. 3 They recovered no weapons. A search of the phone revealed emails associated with Mr.

14 Nguyen. In June 2024, he sent a Nevada high-school employee two emails. One said that he hated

15 all “n***ers” and would get his “9 millimeter and 45 and shoot” them all. 4 He sent a similar email

Northern District of California
16 to a security company in California saying that he hated “n***ers,” “the only good n***er is a

17 dead n***er that is shot and killed,” and “[p]olice offers need to shoot and kill all n***ers for our

18 safety. The only good n***er is a dead n***er.” 5 The phone also had a copy of the five-page

19 manifesto of Dylann Roof, the white supremacist murderer of nine Black people attending church

20 services in Charleston, South Carolina. 6

21 Mr. Nguyen has arrests but only one misdemeanor conviction in August 2018 (resulting in three

22 years’ probation) for threatening a crime with the intent to terrorize. That case, which is reflected in

23 Pretrial Services’ bail study and summarized in the government’s detention memorandum, involved

25 2
Compl. – ECF No. 1 at 5–8.
3
26 Id. at 8–10.
4
Id. at 10 (cleaned up). The court follows the citation formats in the parties’ briefs.
27 5
Id. at 11.
28 6
U.S.’s Mem. – ECF No. 4 at 4.

ORDER – No. 24-mj-71474-MAG-1 (LB) 2
Case 3:24-mj-71474-MAG Document 15 Filed 10/25/24 Page 3 of 14

1 Mr. Nguyen’s sending threatening texts to his former girlfriend. Those texts included (1) a

2 photograph of a black semi-automatic handgun with two loaded magazines; (2) a photograph of Mr.

3 Nguyen pointing the gun at the camera; (3) a photograph of Lovelle Mixon and four fallen Oakland

4 PD officers (Mixon killed four officers in 2009); and (4) a photograph of Maurice Clemmons with

5 four fallen Washington state police officers (Clemmons also killed four officers in 2009). Below the

6 photos, Mr. Nguyen said, “You make me feel like doing this now. If I do what Lovelle Mixon and

7 Maurice Clemmons did its because of you.” 7 In a subsequent search of Mr. Nguyen’s residence,

8 where he lives now, the police recovered the Glock 21 semiautomatic pistol seen in the photograph.

9 It was loaded with a bullet in the chamber and an inserted ten-round magazine. Officers also

10 recovered three loaded ten-round Glock magazines, a speed loader, 150 rounds of Blazer

11 ammunition, 50 rounds of Federal ammunition, and 125 rounds of Sig Sauer ammunition. 8

12 The government summarizes Mr. Nguyen’s other arrests and actions that often involve racist

United States District Court
13 language and threats. 9 It proffered that he travels. A passport was not found during the September

14 2024 search. 10 He works as a security officer at KZB school. 11 He reports no substance abuse or

15 mental-health issues. 12 Defense counsel proffered that he completed San Francisco’s behavioral-

Northern District of California
16 health court. Two firearms are registered to him. 13 Defense counsel proffered that those firearms are

17 not in his possession. He lives with his mother, who agreed to act as a custodian and to sign an

18 unsecured bond. His aunt also agreed to co-sign an unsecured bond. 14

21
7
22 Id. (cleaned up).
8
Id. at 4–5.
23 9
Id. at 3–4 (twelve incidents including the threat to the ex-girlfriend and the emails to the Nevada
24 school employee; one of the incidents was threatening a business in 2018 by saying he would go there
with his AK, tell everyone how he felt about Filipinos, and then spray the place).
25 10
Pretrial Servs. Rep. – ECF No. 6 at 6.
11
26 Id. at 3.
12
Id. at 4–5.
27 13
Id. at 6.
28 14
Id. at 2.

ORDER – No. 24-mj-71474-MAG-1 (LB) 3
Case 3:24-mj-71474-MAG Document 15 Filed 10/25/24 Page 4 of 14

1 Pretrial Services recommended that the court detain Mr. Nguyen as a danger to the community

2 (but said that conditions could mitigate flight risk). 15

3 The defense submitted assessments from state-court proceedings about Mr. Nguyen’s

4 treatment in a behavioral-health court. Mr. Nguyen has an IQ of 73, has “strikingly limited ability

5 to understand the greater context and consequences of his actions,” has “limited capacity to

6 function independently,” and has the mental capacity of an eleven-year-old child. 16

8 GOVERNING LAW

9 Under the Bail Reform Act, 18 U.S.C. § 3142, a court must order the release of a defendant on

10 a personal recognizance or unsecured appearance bond unless release on a bond alone will not

11 reasonably assure the defendant’s appearance or the safety of the community or another person.

12 See 18 U.S.C. § 3142(b). If a court determines that release on a bond alone presents a risk of

United States District Court
13 nonappearance or a danger to any person or the community, then the court must choose “the least

14 restrictive further condition[s]” that will assure the defendant’s appearance and the safety of the

15 community or another person. See id. § 3142(c) (listing thirteen possible conditions of release and

Northern District of California
16 empowering the court to impose “any other condition that is reasonably necessary” to assure the

17 defendant’s appearance and the community’s safety).

18 In evaluating whether conditions can be fashioned under section 3142(c) to reasonably assure

19 the defendant’s appearance and the safety of the community or another person, a court “shall

20 consider” the factors in section 3142(g), including (1) the nature and circumstances of the offense,

21 including whether the offense is one of certain enumerated crimes (including a controlled

22 substance offense), (2) the weight of the evidence, (3) the history and characteristics of the person

23 (including his job, financial resources, family ties, community ties, substance abuse history,

24 physical and mental condition, character, criminal history, past conduct, track record in appearing

25 court, and whether at the time of arrest the person was on supervision for parole, probation, or

27 15
Id. at 6–7.
28 16
These supporting documents were lodged, not filed, but were shared with the government.

ORDER – No. 24-mj-71474-MAG-1 (LB) 4
Case 3:24-mj-71474-MAG Document 15 Filed 10/25/24 Page 5 of 14

1 other release in a pending criminal case), and (4) the nature and seriousness of the danger to any

2 person or the community posed by the person’s release. Id. § 3142(g).

3 Under section 3142(f), the court holds a bail hearing only in certain cases, including those

4 involving a crime of violence or a serious risk of flight. Id. § 3142(f)(1)(A), (2)(A).

5 At the hearing, the court determines whether any conditions in section 3142(c) will reasonably

6 assure the defendant’s appearance and the safety of the community or another person. Id. § 3142(f).

7 The court must order a defendant detained if — “after a hearing pursuant to the provisions of

8 subsection [3142](f)” — the court finds that conditions cannot be fashioned to assure the

9 defendant’s appearance in court or the safety of the community or another person. Id. § 3142(e)(1).

11 ANALYSIS

12 There are two issues: (1) is transmitting threats in interstate commerce, in violation of 18

United States District Court
13 U.S.C. § 875(c), a crime that entitles the government to a detention hearing, and (2) if there is a

14 basis for a detention hearing, can the court set conditions to ensure the safety of the community

15 and Mr. Nguyen’s appearance in court. The government is entitled to a detention hearing, but on

Northern District of California
16 this record, the court cannot set conditions to ensure the safety of the community. It could set

17 conditions to address a standalone risk of non-appearance. The court also flags the issues about

18 Mr. Nguyen’s competency.

20 1. The Government’s Entitlement to a Detention Hearing

21 The parties contest whether 18 U.S.C. § 875 is a crime of violence that entitles the government

22 to a detention hearing. 18 U.S.C. § 875(c) criminalizes threats in interstate commerce: “Whoever

23 transmits in interstate or foreign commerce any communication containing any threat to kidnap

24 any person or any threat to injure the person of another, shall be fined under this title or

25 imprisoned not more than five years, or both.” The defense contends that it is not a crime of

26 violence because at least in the First Circuit, the statute permits conviction for a mens rea of

27 recklessness and, in any event, a ten-year sentence is required before the government is entitled to

ORDER – No. 24-mj-71474-MAG-1 (LB) 5
Case 3:24-mj-71474-MAG Document 15 Filed 10/25/24 Page 6 of 14

1 a detention hearing under § 3142(f)(1)(A). 17 The government contends that § 875(c) is a crime of

2 violence that entitles it to a detention hearing. 18 Because the government was entitled to a

3 detention hearing based on its proffer of a serious risk of flight, the court does not resolve the issue

4 fully: a ten-year sentence is not required, but there is an issue about whether a conviction based on

5 a mens rea of recklessness means that § 874(c) is not a crime of violence. Because the issue may

6 come up in any appeal in the District of Massachusetts or in further detention proceedings in

7 magistrate court, this order addresses the crime-of-violence issue but ultimately skirts the issue

8 and holds that a hearing was appropriate based on a serious risk of flight.

9 Under the Bail Statute,

10 (f) DETENTION HEARING.—The judicial officer shall hold a hearing to determine
whether any condition or combination of conditions set forth in subsection (c) of
11 this section will reasonably assure the appearance of such person as required and
the safety of any other person and the community—
12 (1) upon motion of the attorney for the Government, in a case that involves—

United States District Court
13 (A) a crime of violence, a violation of section 1591, or an offense listed
in section 2332b(g)(5)(B) for which a maximum term of imprisonment of
14 10 years or more is prescribed;
...
15

Northern District of California
(E) any offense that is not a felony that is not otherwise a crime of violence
16 . . . that involves the possession or use of a firearm . . . ;
(2) upon motion of the attorney for the Government or upon the judicial
17
officer’s own motion in a case, that involves—
18 (A) a serious risk that such person will flee . . . .
19 18 U.S.C. § 3142(f)(1)(A), (E), (2)(A).

20 The first issue is whether a detention hearing is required for crimes of violence only if the

21 maximum term of imprisonment is at least ten years. It is not.

22 In Dai v. United States, the defendant was charged under § 875(c) with threatening Jewish

23 students at Cornell University. 99 F.4th 136, 137 (2nd Cir. 2024). The magistrate judge held that the

24 government was entitled to a detention hearing for all crimes of violence and that the ten-year

25 qualifying language applied only to terrorism offenses under 18 U.S.C. § 2242b(g)(5)(B). The district

27 17
Def.’s Opp’n – ECF No. 7 at 1–2.
28 18
U.S.’s Mem. – ECF No. 4 at 5–6.

ORDER – No. 24-mj-71474-MAG-1 (LB) 6
Case 3:24-mj-71474-MAG Document 15 Filed 10/25/24 Page 7 of 14

1 court upheld the order. Id. at 138. The Second Circuit affirmed, holding that the ordinary reading of §

2 3142(f)(1)(A) is that a “defendant may be eligible for a detention hearing if charged with one of three

3 types of offenses: (1) a crime of violence, (2) a violation of § 1591 (sex trafficking of children or by

4 force, fraud, or coercion), or (3) an offense listed in § 2332b(g)(5)(B) (federal crimes of terrorism) for

5 which a maximum term of imprisonment of 10 years or more is prescribed.” Id. at 138–39.

6 The Second Circuit gave three reasons for its holding. One, the result avoids surplusage because

7 all violations of § 1591 are punishable by more than ten years, and removing it from the statute

8 would leave the statute unchanged. Id. at 139 (collecting cases). Two, the result made grammatical

9 sense because there was no restrictive comma separating the ten-year qualifier from the third

10 category of offenses, “which suggests that the two are directly connected.” Id. (collecting authority).

11 Three, the result is supported by statutory history. Section 3142(f)(1)(A) originally included only

12 the first category, meaning, any defendant charged with a crime of violence was eligible for a

United States District Court
13 detention hearing. In 2004, Congress added the terrorism predicate for a hearing: “any offense listed

14 in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is

15 prescribed.” That meant that the government could seek detention for (1) any crime of violence or

Northern District of California
16 (2) an offense listed in § 2232b(g)(4)(B) if the charge carried a term of imprisonment of ten years or

17 more. Congress enacted the current version of the statute in 2008, adding “a violation of section

18 1591 between ‘crime of violence’ and ‘an offense listed in § 2332b(g)(5)(B)’. . . . But it did not

19 move ‘10 years or more’ forward to apply to all three categories. Nor did it add a comma before the

20 ‘10 years or more’ language. This statutory history shows that Congress added one category of

21 offenses in 2004 and another in 2008, but did not on either occasion alter the scope of the original

22 category of offenses—crimes of violence.” Id. at 139–40 (analyzing statutory history).

23 Under a plain reading of the statute, the ten-year restriction applies only to the third category

24 for federal terrorism offenses. The result avoids surplusage, makes grammatical sense, and is

25 consistent with the statutory history of the bail statute. Id. Other courts have reached a similar

26 conclusion. United States v. Santoro, 359 F. Supp. 3d 122, 124 (D. Me. 2019) (in a case charging

27 a violation of 18 U.S.C. § 875(c), the court held that the ten-year qualifier applied only to the third

ORDER – No. 24-mj-71474-MAG-1 (LB) 7
Case 3:24-mj-71474-MAG Document 15 Filed 10/25/24 Page 8 of 14

1 category of terrorism-related charges); United States v. Pietila, No. 1:23-CR-78, 2023 WL

2 4313162, at *3 (W.D. Mich. July 3, 2023) (same).

3 The defense cites bail decisions reaching different conclusions. 19 These cases are distinguishable.

4 United States v. Baldazo involved drug, gun, and money-laundering charges. No. 2:11 CR 77, 2012

5 WL 12947283, at *1 (N.D. Ind. Apr. 19, 2012). In its recitation of the overall scheme under the bail

6 statute, the court listed the categories of cases where the court has authority to order detention,

7 including “crimes of violence with a statutory maximum of ten years or more.” Id. (citing, without

8 analysis, 18 U.S.C § 3152(f)(1)(A)). This is only a characterization (and perhaps a misunderstanding)

9 of the overall statutory scheme, involves no analysis, and is not persuasive authority. Unites States v.

10 Paulino involves a Hobbs Act robbery, which carries a maximum term of imprisonment of more than

11 ten years, and involves a similar characterization of the Bail Statute, not analysis. No. 19 Cr. 54

12 (PGG), 2020 WL 1847914, at *1, *5 (S.D.N.Y. Apr. 13, 2020) (in a post-plea detention proceeding,

United States District Court
13 characterized the Hobbs Act robbery as “a crime of violence punishable by a maximum term of

14 imprisonment of more than 10 years”); see also United States v. Madoff, 586 F. Supp. 2d 240, 247

15 (S.D.N.Y. 2009) (in a securities-fraud cases, which entitles the government to a detention hearing

Northern District of California
16 only in a case where there is a serious risk that the defendant will flee or obstruct or attempt to

17 obstruct justice, 18 U.S.C. § 3142(f)(2), the court similarly recited the qualifying offenses for a §

18 3142(f)(1) motion, including “a crime of violence, which carries a maximum term of imprisonment

19 of ten years or more”). But see United States v. Persico, No. 10-CR-0147 (DLI), 2017 WL 3669554,

20 at *3 (E.D.N.Y. Aug. 23, 2017) (concluding without analysis that the crime of extortionate extension

21 of credit, in violation of 18 U.S.C. § 892, is not a predicate crime for a detention hearing under §

22 3142(f)(1)(A) because the maximum term of imprisonment is less than ten years).

23 The lack of analysis in these cases contrasts with the analysis in Dai, which is supported by the

24 plain language of the statute and the statutory history. In sum, the court holds that a crime of violence

25 entitles the government to move for detention, even if the statutory maximum is less than ten years.

27
19
Def.’s Opp’n – ECF No. 7 at 8–9 (collecting cases, including cases discussing how a modifier at the
28 end of a sentence applies to the entire series).

ORDER – No. 24-mj-71474-MAG-1 (LB) 8
Case 3:24-mj-71474-MAG Document 15 Filed 10/25/24 Page 9 of 14

1 The second issue is whether a violation of § 875(c) is a crime of violence. Under the Bail

2 Reform Act (relevantly here), “the term ‘crime of violence’ means— (A) an offense that has as an

3 element of the offense the use, attempted use, or threatened use of physical force against the

4 person or property of another.” 18 U.S.C. § 3156(a)(4)(A). Citing a First Circuit model jury

5 instruction, the defense contends that § 875(c) is not categorically a crime of violence because it

6 can be accomplished with a mens rea of recklessness. 20 The government responds that it is a crime

7 of violence, it also is a crime that involves the possession or use of a firearm, and the government

8 was entitled to a detention hearing in any event based on its proffer of a serious risk of flight. 21

9 The court holds that the government was entitled to a hearing based on a serious risk of flight,

10 does not decide the other issues, but sets forth its analysis so far for whatever utility it may have

11 for any appeal or further detention proceedings.

12 Several cases have addressed whether transmitting interstate threats under 18 U.S.C. § 875(c) is

United States District Court
13 a crime of violence. In Santoro, for example, the district court held that it was. 359 F. Supp. at 127

14 (applying Elonis v. United States, 575 U.S. 723, 740 (2015)). Other cases have reached similar

15 results. United States v. Christy, No. 3:18-CR-223, 2020 WL 2794617, at *3 n.5 (M.D. Pa. May 29,

Northern District of California
16 2020) (collecting cases); United States v. Kane, No. 3:20-mj-5054 TLF, 2020 WL 1660058, at *2

17 (W.D. Wash. Apr. 3, 2020) (same).

18 The defense cites the First Circuit Model jury instruction to support its argument that conviction

19 is possible based on a mens rea of recklessness. That instruction has the following elements of the

20 offense: (1) a communication was sent in interstate commerce; (2) the defendant intended to send

21 the communication; and (3) the defendant consciously disregarded a substantial risk that his

22 communication would be viewed as threatening. 1st Cir. Crim. Jury Instr. 4.18.875. It is the third

23 element that allows conviction for a defendant who acts recklessly. 22 The comment to the

24 instruction cites Counterman v. Colorado, which postdates Elonis. In Counterman, the Supreme

26
20
Id. at 2 (citing 1st Cir. Crim. Jury Instr. § 4.18.875).
27 21
U.S.’s Reply – ECF No. 13.
28 22
Def.’s Opp’n – ECF No. 7 at 7.

ORDER – No. 24-mj-71474-MAG-1 (LB) 9
Case 3:24-mj-71474-MAG Document 15 Filed 10/25/24 Page 10 of 14

1 Court held that a recklessness mens rea struck the appropriate balance between allowing free speech

2 and “protecting against the profound harms, to both individuals and society, that attend true threats

3 of violence. A person acts recklessly when he consciously disregards a substantial and unjustifiable

4 risk that the conduct will cause harm to another. In the threats context, that means that a speaker is

5 aware that others could regard his statements as threatening violence and delivers them anyway.”

6 Id. comment (cleaned up) (quoting Counterman, 600 U.S. 66, 70, 79 (2023)).

7 The Ninth Circuit Model Jury instruction is different and has the following elements of the

8 offense: (1) a defendant knowingly transmitted in interstate commerce a communication containing

9 a threat to injure another person, and (2) the communication was transmitted for the purpose of

10 issuing a threat, or with knowledge that the communication would be viewed as a threat. The

11 government need not prove that the defendant intended to carry out the threat. 9th Cir. Crim. Jury

12 Instr. 8.13 & comment (2024) (citing Elonis, 575 U.S. at 740) (“The mens rea of the crime involved

United States District Court
13 in communicating a threat is established through proof that a defendant makes a communication for

14 the purpose of issuing a threat, or with knowledge that the communication will be viewed as a

15 threat.”)). Thus, in the Ninth Circuit, a defendant cannot be convicted under § 875(c) on a

Northern District of California
16 recklessness standard.

17 The issue matters because in Borden v. United States, the Supreme Court addressed whether

18 the defendant’s state-court conviction for reckless aggravated assault was a crime of violence

19 triggering a fifteen-year mandatory-minimum sentence under the Armed Career Criminal Act. In a

20 plurality opinion, the court held that it did not. 23 593 U.S. 420, 423–24 (2021) (because the

21 increase in penalty is severe, the scope of the statute is confined); Gomez v. United States, 115

22 F.4th 987, 993–94 (9th Cir. 2024) (analyzing Borden, 593 U.S. at 426–27, 429, 446). The issue

23 here is a threshold matter about whether the court can hold a detention hearing. As the defense

25 23
Id. at 5–6 (contending that under Borden, a crime is not a crime of violence if it requires only the
conscious disregard of a substantial and unjustifiable risk) (citing Gomez v. United States, 115 F.4th
26 987, 993–94 (9th Cir. 1994)); see Gomez, 115 F.4th at 993–94 (citing and quoting Borden: “After
Borden, the elements clause is only satisfied by crimes that require use of force with a mens rea more
27 culpable than simple recklessness. Put another way, if a person can be convicted under a criminal
statute by using force against another only with the ‘conscious disregard’ of a ‘substantial and
28 unjustifiable risk,’ the crime is not a crime of violence.”) (cleaned up).

ORDER – No. 24-mj-71474-MAG-1 (LB) 10
Case 3:24-mj-71474-MAG Document 15 Filed 10/25/24 Page 11 of 14

1 points out, the government’s cited cases all predate Borden. The inquiry is different in the Ninth

2 Circuit: under the law binding the court, the case seemingly is a crime of violence, at least without

3 considering Counterman. But this case is being prosecuted in the District of Massachusetts. The

4 court cannot resolve the issue on this briefing, at least not without more research. In light of its

5 holding that the government is entitled to a detention hearing based on its proffer of a serious risk

6 of flight, the court does not decide the issue now but preserves its analysis for whatever utility it

7 has for further detention proceedings or any appeal.

8 The government also argues in its reply brief that it is entitled to a detention hearing under 18

9 U.S.C. § 3142(f)(1)(E), which requires a hearing if the defendant is charged with “any felony that

10 is not otherwise a crime of violence that involves . . . the possession or use of a firearm or

11 destructive device.” It cites three cases: one involves a felon in possession of a firearm, the second

12 involves making a false statement related to a federal firearms license, and the third involves a

United States District Court
13 felon in possession of ammunition.24 On this record and argument, the government’s cases are

14 distinguishable: its cited cases all involve possession or use of a firearm or destructive device; this

15 case does not and involves only threats to use them.

Northern District of California
16 The government also contends, and the court holds, that it was entitled to a detention hearing

17 based on its proffer at the initial appearance (as reflected in the recording of that appearance) about

18 serious risk of flight. The court’s determination below — that conditions might address that risk —

19 does not change the analysis of entitlement to the hearing. The defense points out that the government

20 is able to meet its burden of establishing serious risk of flight only in “extreme and unusual cases.”

21 For this point, the defense cites the legislative history of the Bail Reform Act, which cites United

22 States v. Abrahams for the proposition that courts have recognized the implicit authority of courts to

23 “deny release to defendants . . . who pose significant risk of flight.” 25 The quote “extreme and

25 24
U.S.’s Reply – ECF No. 13 at 1–2 (citing United States v. Watkins, 940 F.3d 151, 165 (2d Cir.
26 2019); United States v. Syed, 624 F. Supp. 3d 1036, 1043 (D.N.M. 2022); United States v. Elizondo,
No. 4:24-CR-00157-002, 2024 WL 1546488, at *1 (S.D. Tex. Apr. 4, 2024)).
27 25
Def.’s Opp’n – ECF No. 7 at 3–4 (citing Bail Reform Act of 1983: Rep. of the Comm’n on the
Judiciary, S. Rep. 98-225 at *3190 & n.28 (1983) (citing United States v. Abrahams, 575 F.2d 3, 8 (1st
28 Cir. 1978)).

ORDER – No. 24-mj-71474-MAG-1 (LB) 11
Case 3:24-mj-71474-MAG Document 15 Filed 10/25/24 Page 12 of 14

1 unusual cases” comes from Abrahams. 575 F.2d 3, 4–5, 8 (1st Cir. 1978) (detaining a defendant who

2 posted bail after his arrest at his home in Massachusetts, was released, failed to appear (thus

3 forfeiting $100,000), and was arrested at a Florida hotel where he registered under an alias; he was an

4 escaped New Jersey state prisoner and had given a false name at the previous bail hearing, he failed

5 to appear in a California case and was a fugitive; he used several aliases, and he transferred $1.5

6 million to a bank in Bermuda in 1976 and 1977; the court held that this is “the rare case of extreme

7 and unusual circumstances that justifies pretrial detention without bail”).

8 Abrahams does not speak to the quantum required for the government to obtain a hearing

9 based on a serious risk of flight and instead describes circumstances that justify detention. There is

10 authority for the proposition that the burden to obtain a hearing is not onerous:

11 There is little authority outlining what the government or Court must put forth to
trigger the hearing. A district court in the Western District of Virginia has said it
12 simply: “a detention hearing may be held if either the United States or the court

United States District Court
believes there is a significant risk of flight.” United States v. Powers, 318 F. Supp.
13 2d 339, 341 (W.D. Va. 2004) (emphasis added).
14 Section 3142(f) requires that the detention hearing be held “immediately upon the
person’s first appearance before the judicial officer unless that person, or the
15 attorney for the Government, seeks a continuance.” Because of the immediacy with

Northern District of California
16 which the hearing should happen, the government or the Court need only express
their belief that the defendant poses a serious risk of flight for the hearing to
17 commence.

18 United States v. White, No. 4:18-mj-71386-MAG-1, 2018 WL 5291989, at *4 (N.D. Cal. Oct. 19,

19 2018).

20 Here, the government did more than express its belief, and it did not overplay the issues about

21 possible flight risk: it acknowledged Mr. Nguyen’s ties to the community, and it identified travel.

22 It did this in the context of a fuller description of erratic and concerning behavior in this and other

23 districts (described more fully in its subsequent memorandum and excerpted in the Statement) that

24 gave rise to a substantial concern about volatility, amenability to supervision, and a resulting

25 concern about a serious risk of flight. That gets the government its detention hearing under 18

26 U.S.C. § 3142(f)(2) based on a serious risk of flight. The court’s view — also expressed in some

27 of the Tenderloin fentanyl cases — is that the inquiry into whether a defendant poses a serious risk

28 of flight cannot be divorced from the context of the defendant’s behavior.

ORDER – No. 24-mj-71474-MAG-1 (LB) 12
Case 3:24-mj-71474-MAG Document 15 Filed 10/25/24 Page 13 of 14

1 2. Danger to the Community and Serious Risk of Flight

2 Given the government’s entitlement to a hearing, on this record, the court holds that no

3 conditions will reasonably assure the safety of the community or the defendant’s appearance in

4 court. In reaching this conclusion, the court considered the complaint, the bail study, and the

5 parties’ proffers and submissions. The court explained its reasons more fully at the hearing, but in

6 short, the defendant has had access to guns, even if he does not have guns at the moment, and has

7 threatened to use them on many occasions. The issue is compounded by the court’s concern about

8 competency and how it affects Mr. Nguyen’s ability to comply with conditions of release,

9 including appearing in court. That concern is mitigated somewhat by his apparent graduation from

10 behavioral-health court in San Francisco. The defense also proffered that he apparently has not

11 had guns since his arrest in the 2018 incident involving his former girlfriend. But troubling

12 behavior involving threats and the use of guns has continued. The court might be able to fashion

United States District Court
13 conditions to address flight risk, but that issue cannot be separated from the volatility that has

14 surrounded Mr. Nguyen’s many law-enforcement contacts involving threats of violence coupled

15 with actual possession of guns.

Northern District of California
16

17 3. Competency

18 The court has significant concerns on this record — given the issues summarized at the end of

19 the Statement — about Mr. Nguyen’s competency. The parties have an obligation under the statute

20 to ask the court to order Mr. Nguyen to submit to a psychiatric examination under 18 U.S.C. §

21 4241(b) to determine whether he is competent to stand trial. Based on Mr. Nguyen’s submissions

22 from behavioral-health court, there seemingly is reasonable cause to believe that the defendant

23 “may presently be suffering from a mental disease or defect rendering him mentally incompetent to

24 the extent that he is unable to understand the nature and consequences of the proceedings against

25 him or to assist properly in his defense.” 18 U.S.C. § 4241(a). An examination under § 4241(b) can

26 be conducted locally. Id. § 4247(b)–(c). The parties must discuss whether they can stipulate to that

27 process. In any event, any psychiatric report must include the following information required by §

28 4247(c)(1–4):

ORDER – No. 24-mj-71474-MAG-1 (LB) 13
Case 3:24-mj-71474-MAG Document 15 Filed 10/25/24 Page 14 of 14

1 (1) The defendant’s history and present symptoms;

2 (2) A description of the psychiatric, psychological, and medical tests that were employed,

3 and their results;

4 (3) The examiner’s findings; and

5 (4) The examiner’s opinions as to diagnosis, prognosis, and whether the defendant “is

6 suffering from a mental disease or defect rendering him incompetent to the extent that he is unable

7 to understand the nature and consequences of the proceedings against him or to assist properly in

8 his defense.” Id. § 4247(c)(1)–(4)(A).

9 In addition, the examiner should determine whether the defendant has sufficient mental

10 capacity to waive his constitutional rights and to make a reasoned determination among the

11 questions put to him.

12 CONCLUSION

United States District Court
13 The defendant is committed to the custody of the Attorney General or a designated

14 representative for confinement in a corrections facility separate, to the extent practicable, from

15 persons awaiting or serving sentences or held in custody pending appeal. 18 U.S.C. § 3142(i)(2).

Northern District of California
16 The defendant must be afforded a reasonable opportunity to consult privately with counsel. See id.

17 § 3142(i)(3). On order of a court of the United States or on request of an attorney for the

18 government, the person in charge of the corrections facility must deliver the defendant to the

19 United States Marshal for a court appearance. Id. § 3142(i)(4). This decision is without prejudice

20 to reconsideration in the form of a fuller assessment of the defendant’s mental health and capacity

21 and how — given the pending charge — conditions might address the safety of the community.

22 IT IS SO ORDERED.

23 Dated: October 25, 2024 ______________________________________
LAUREL BEELER
24 United States Magistrate Judge
25

ORDER – No. 24-mj-71474-MAG-1 (LB) 14

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