UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 08-mj-111-01-JM

Van Thi Nguyen

ORDER OF DETENTION PENDING TRIAL

In accordance with Section 3142(f) of the Bail Reform Act,

18 U.S.C. §§ 3141 et seq., a hearing was conducted on December 2,

2008, for the purpose of determining whether to detain defendant,

Van Thi Nguyen, who has been arrested on charges of possession

with intent to manufacture marijuana and conspiracy to possess

with intent to manufacture marijuana.

Under 18 U.S.C. § 3142(b), a court, in making a

determination regarding detention, must evaluate the risk of the

defendant’s flight, the risk to the safety of any other person,

and the risk to the safety of the community. In circumstances

when detention is not mandated by the court, the court is

nonetheless empowered to impose conditions on release. 18 U.S.C.

§ 3142(c). 

Pursuant to the provisions of 18 U.S.C. § 3142(g) a court,

in assessing the risks noted in 18 U.S.C. § 3142(b), shall

Case 1:08-mj-00111-JM Document 8 Filed 12/03/08 Page 1 of 6
2

consider the following: (1) the nature and circumstances of the

offense charged; (2) the weight of the evidence as to guilt; 

(3) the history and characteristics of the accused, including

family ties, past history, financial resources and employment;

and (4) the nature and seriousness of the danger to any person or

the community that would be posed by a release.

During the course of a hearing conducted pursuant to 18

U.S.C. § 3142, the government typically retains the burden of

persuading the court that “‘no condition or combination of

conditions will reasonably assure’ the defendant’s presence at

trial.” United States v. Perez-Franco, 839 F.2d 867, 870 (1st

Cir. 1988)(quoting United States v. Palmer-Contreras, 835 F.2d

15, 17-18 (1st Cir. 1987)); United States v. Patriarca, 948 F.2d

789, 793 (1st Cir. 1991). For its part, the government is

required to offer clear and convincing evidence of dangerousness;

and a preponderance of the evidence to prove risk of flight. See

Patriarca, 948 F.2d at 792-93. Facts necessary to find that no

combination will reasonably assure the safety of any person and

the community require satisfaction of the “clear and convincing”

standard. 18 U.S.C. § 3142(f)(2). 

In specific instances, delineated in 18 U.S.C. § 3142(e), a

Case 1:08-mj-00111-JM Document 8 Filed 12/03/08 Page 2 of 6
3

presumption arises that no condition or combination of conditions

will reasonably assure the appearance of a defendant and the

safety of the community. Among the instances where a presumption

arises is the situation where, 

the judicial officer finds that there is probable cause to

believe that the person committed an offense for which a

maximum term of imprisonment of ten years or more is

prescribed in the Controlled Substances Act (21 U.S.C. 801

et seq) . . . .

18 U.S.C. § 3142(e).

In the case at hand, at the preliminary hearing I found 

probable cause to believe that the offenses charged have been

committed and that the defendant has committed them. In fact,

after the government’s proffer, defense counsel stipulated to

probable cause. Further, the offenses charged against defendant

are ones for which a maximum term of imprisonment is ten years or

more, as prescribed in the Controlled Substances Act, 21 U.S.C.

§§ 801 et seq. See United States v. Dillon, 938 F.2d 1412, 1417

(1st Cir. 1991). Thus, Section 3142(e)’s rebuttable presumption

that “no condition or combination of conditions will reasonably

assure [defendant’s] appearance . . . and the safety of the

community . . .” is triggered in this case. See 18 U.S.C. §

3142(e), (f); 21 U.S.C. § 841(b)(1)(C); see also United States v.

Case 1:08-mj-00111-JM Document 8 Filed 12/03/08 Page 3 of 6
4

Vargas, 804 F.2d 157, 162-63 (1st Cir. 1986). 

In order to counter the statutory presumption triggered, the

defendant must present evidence which demonstrates that “what is

true in general is not true in [his] particular case.” United

States v. Jessup, 757 F.2d 378, 384 (1st Cir. 1985). Notably,

the burden is one of production, not of persuasion. Id. at 380-

81. 

Here, I find that the defendant fails to rebut the

presumption with regard to risk of flight and danger to the

community. Specifically, this is a drug crime. Co-conspirators

have identified defendant as one of the leaders in a substantial

and sophisticated marijuana grow operation. Defendant owned two

of the grow houses and provided funds for at least six (6) grow

houses. She dealt with the realtor on all. Her friend, a coconspirator, has already fled to Canada. She was arrested at the

airport ready to leave for Canada. She spent substantial sums,

yet claims to have been unemployed for two years. 

The defendant here is precisely the type of individual

Congress envisioned when it established the statutory

presumption. 

 Upon full consideration of the arguments offered by the

Case 1:08-mj-00111-JM Document 8 Filed 12/03/08 Page 4 of 6
5

government and defense, I am satisfied that the defendant has not

rebutted with any credible evidence the presumption that she

poses a serious risk of flight and a danger to the community. 

Accordingly, it is ORDERED that the defendant be detained

pending trial.

The defendant is committed to the custody of the Attorney

General or his designated representative for confinement in a

corrections facility separate, to the extent practicable, from

persons awaiting or serving sentences or being held in custody

pending appeal. The defendant shall be afforded a reasonable

opportunity for private consultation with defense counsel. On

order of a court of the United States or on request of an

attorney for the Government, the person in charge of the

corrections facility shall deliver the defendant to the United

States Marshal for the purpose of an appearance in connection

with a court proceeding.

SO ORDERED.

______________________________

James R. Muirhead

United States Magistrate Judge

Date: December 3, 2008

cc: Tony Soltani, Esq.

Jennifer C. Davis, Esq.

Case 1:08-mj-00111-JM Document 8 Filed 12/03/08 Page 5 of 6
6

U.S. Marshal

U.S. Probation

Case 1:08-mj-00111-JM Document 8 Filed 12/03/08 Page 6 of 6