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United States v. Nguyen

United States District Court, D. Kansas

November 1, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PHONG HOANG NGUYEN, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE

         This matter is before the court on the government's appeal of the Magistrate Judge's order of release. (Docs. 18, 20.) Defendant has filed a response. (Doc. 26.) The court held an evidentiary hearing on October 31, 2019, and orally ruled on the matter. This written order will supplement the court's oral ruling. For the reasons stated, the Magistrate Judge's order of release (Doc. 18) is REVOKED and Defendant is ordered detained pending trial.

         I. Background

         Defendant is charged in a one-count indictment with unlawfully and knowingly possessing firearms and ammunition, in and affecting commerce, after having been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). (Doc. 1.) Defendant was initially ordered detained following a hearing before Magistrate Judge Gwynne E. Birzer, based upon the Magistrate Judge's finding that Defendant's release would pose a danger to the community. (Doc. 11.) Judge Birzer indicated she might reconsider the order if Defendant provided in-depth information about management of his mental health issues. (Id. at 2.) Defendant subsequently filed a motion for reconsideration, which was heard by Magistrate Judge Kenneth G. Gale. Judge Gale entered an order of release with conditions after Defendant presented evidence of a substance abuse and psychological assessment with a recommendation for outpatient treatment. (Doc. 18.) The order included conditions that Defendant get medical or psychiatric and substance abuse treatment and follow the recommendation of treatment providers; that he participate in inpatient or outpatient treatment for substance abuse; that he not possess a firearm and not unlawfully use controlled substances; and that he submit to drug testing. (Id. at 2.) The government appeals the release order, arguing there are no conditions that will reasonably assure the safety of the community.[1] (Doc. 20.)

         II. Standards

         The district court's review of a magistrate judge's detention or release order is de novo. United States v. Cisneros, 328 F.3d 610, 616 n. 1 (10th Cir. 2003). A de novo evidentiary hearing, however, is not required. The district court may either “start from scratch” or “incorporate the record of the proceedings conducted by the magistrate judge including the exhibits admitted.” United States v. Burks, 141 F.Supp.2d 1283, 1285 (D. Kan. 2001) (citing United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991)). The Federal Rules of Evidence do not apply to detention hearings. See 18 U.S.C. § 3142(f)(2)(B). The court may allow the parties to present information by proffer or it may insist on direct testimony. See Id. See also United States v. Goines, No. 19-10103-JWB, 2019 WL 4168822, at *1 (D. Kan. Sept. 3, 2019).

         Under the Bail Reform Act of 1984, the court must order a defendant's pretrial release, with or without conditions, unless it “finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e). In making this determination, the court must take into account the available information concerning

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence ... or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including-(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.

18 U.S.C. § 3142(g). There is no rebuttable presumption of risk of flight or danger to the community in this case. See 18 U.S.C. § 3142(e).

         III. ...


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