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`Stephen G. Larson (SBN 145225)
`slarson@larsonllp.com
`Hilary L. Potashner (SBN 167060)
`hpotashner@larsonllp.com
`Jerry A. Behnke (SBN 180462)
`jbehnke@larsonllp.com
`LARSON O’BRIEN LLP
`555 South Flower Street, Suite 4400
`Los Angeles, California 90071
`Telephone:(213) 436-4888
`Facsimile: (213) 623-2000
`
`Attorneys for Benjamin Jong Ren Hung
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
`
` Case No. 2:20-CR-00452-SJW
`
`DEFENDANT BENJAMIN HUNG’S
`APPLICATION FOR REVIEW OF
`DETENTION ORDER AND
`REQUEST FOR HEARING
`
`
`Judge: Hon. Stephen V. Wilson
`
`
`
`
`United States of America,
`
`Plaintiff,
`
`vs.
`
`Benjamin Jong Ren Hung,
`
`Defendant.
`
`
`
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`
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`Case No. 2:20-CR-00452 -SJW
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`APPLICATION FOR REVIEW OF DETENTION ORDER AND REQUEST FOR HEARING
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`I.
`
`INTRODUCTION
`Benjamin Hung is not a flight risk—as the Magistrate Judge properly found—
`and the concern that he is a “danger to the community” is based on a
`misunderstanding of Mr. Hung’s character and a mischaracterization of the events
`that transpired during a protest in the streets of Pasadena on May 31, 2020.
`Regrettably, in its quest to detain and prosecute Mr. Hung, the government appears
`to have been swept up in the political moment. The complaint affidavit and the
`government’s argument during Mr. Hung’s detention hearing contain repeated
`reference to the government’s misinterpretation of Mr. Hung’s alleged political
`views, which itself is an improper basis for detention and charging decisions.
`Rather, as the law clearly establishes, the decision whether to detain Mr. Hung
`pending trial must be based on Mr. Hung’s conduct, the nature and circumstances of
`the charged offense, and his background and characteristics. Here, each of those
`factors supports releasing Mr. Hung on the sizeable bond and intensive supervision
`proposed in this case.
`II. BACKGROUND
`Benjamin Hung is 28 years old. He grew up in San Marino, California. Mr.
`Hung has no criminal history and no prior record of violence. Mr. Hung is married
`and his wife, Emily, who works for a pharmaceutical company, is now 36 weeks
`pregnant with their first child and is due to give birth next month. Mr. Hung’s
`close-knit family include his parents who own successful businesses, including an
`RV resort in Oregon and a working vineyard in Lodi, California. For his part Mr.
`Hung manages family-related properties around Los Angeles and assists in running
`the family businesses.
`As described in a letter of support from community volunteers and families,
`attached as Exhibit 1, Mr. Hung and his family have a strong reputation for
`community service. The twelve individuals who submitted the attached letter have
`known Mr. Hung—whom they refer to as “Benny”—for 15 years. Exhibit 1. They
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`write:
`During our relationship with Benny for many volunteer projects, we
`have experienced that he always shows up on time, works hard, and
`carries his family’s important values in serving the community in a
`polite, respectable manner. Benny grew up in San Marino in a very
`reputable family committed to serving the San Marino Unified School
`District and the Greater San Gabriel Valley communities. During high
`school, Benny was a hardworking student and an outstanding football
`player who helped the team and lifted the families in the community of
`San Marino.
`
`By knowing Benny’s wonderful attitude, character, and his genuine
`heart for serving others, it is our hope that you take note of this letter of
`recommendation for Benny’s case, as we truly believe Benny is not and
`has never been a threat to our community.
`
`Mr. Hung’s involvement in the community is further evidenced by his and his wife’s
`participation in the San Marino Rotary Club Fourth of July parade. A photograph
`from that event is attached as Exhibit 2; see also Exhibit 3, D. Magrdichian Letter
`in Support.
`Mr. Hung was arrested pursuant to a warrant on a complaint filed September
`21, 2020, and was charged in a two-count indictment on October 7, 2020 with two
`related charges: Conspiracy to transport a firearm interstate and make a false
`statement in the acquisition of that firearm in violation of 18 U.S.C. § 371; and
`unlawfully possessing the same firearm in violation of 18 U.S.C. § 922. The
`indictment also contains forfeiture allegations related to the same firearm, which has
`been seized and is in the possession of the government. Nearly three years after the
`conduct alleged in the Indictment, Mr. Hung was arrested and ordered detained. He
`has been quarantined at the Metropolitan Detention Center since his arrest.
`III. PROCEEDINGS BEFORE THE MAGISTRATE JUDGE
`At Mr. Hung’s initial appearance the government moved for detention under
`18 U.S.C. § 3142(f) on the grounds that the offense “involves . . . the possession or
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`use of a firearm” and there is a serious risk that the defendant will flee. Dkt. No. 3.
`The Magistrate Judge conducted a detention hearing on September 28, 2020. The
`transcript of the hearing is attached hereto as Exhibit 4.
`At the hearing, Mr. Hung offered a substantial bond—in the amount of
`$3,525,000—to be fully secured by property and cash from multiple sources,
`including several members of Mr. Hung’s immediate family. Specifically, the
`proposed bond consisted of $2.8 million secured by equity in Mr. Hung’s parents’
`home in San Marino; $400,000 secured by equity in property owned by his brothers;
`$200,000 cash from his father; $50,000 cash from Richard Esterman, who works for
`the Hung family and is also an elected city councilmember in Sisters, Oregon; and a
`$75,000 signature bond from his wife. Mr. Hung also agreed to submit to intensive
`pretrial supervision and a lengthy list of restrictive conditions, including, of course,
`the requirement that he not possess any firearms or ammunition.
`While the Magistrate Judge correctly found that the proffered bond along with
`other conditions of release mitigated any risk of non-appearance, the Magistrate
`Judge was convinced by the government’s concerns of danger to the community and
`ordered Mr. Hung detained. Specifically, the Magistrate Judge accepted the
`government’s claim that Mr. Hung engaged in an “act of violence” against
`protestors on May 31, 2020, when he allegedly drove a 1997 Dodge Ram pickup
`truck through a crowd that was blocking the street. The government further claimed
`that its subsequent investigation revealed that Mr. Hung harbors a “violent
`ideology.” The government pointed to text messages from seized electronic devices
`as well as firearms and other equipment that Mr. Hung allegedly purchased and
`possessed primarily at the vineyard and a house in Lodi.
`The Magistrate Judge concluded that the bond package proffered by Mr.
`Hung combined with strict release conditions could mitigate the risk that Mr. Hung
`would not appear in court as required, as his family and friends would forfeit
`significant resources if he fled. However, the Court found the bond package does
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`not mitigate the risk of danger to the community.
`IV. LEGAL STANDARD
`The Bail Reform Act of 1984, 18 U.S.C. § 3141, et seq., determines the
`conditions under which bail is available. The statute was authoritatively interpreted
`in United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985). In that case, the Ninth
`Circuit described some of the historic principals related to bail in the federal system
`that continue to apply under the Bail Reform Act, except in cases where the statute
`establishes a presumption for detention.1
`First, federal law has traditionally provided that a person arrested for a non-
`capital offense shall be admitted to bail. Id. at 1405.
`Second, only in rare cases should release be denied. Id.
`Third, doubts regarding the propriety of release are to be resolved in favor of
`defendants. Id.
`The Bail Reform Act authorizes the government to move for a detention
`hearing only if one or more of seven specifically enumerated circumstances exist:
`(1) the defendant is charged with a “crime of violence”, (2) the defendant is charged
`with an offense for which the punishment is life in prison or death, (3) the defendant
`is charged with a serious drug offense, (4) the defendant is charged with a felony
`and has twice been previously convicted of certain serious or violent crimes, (5) the
`defendant is charged with a felony that involves, inter alia, possession or use of a
`firearm; (6) there exists a “serious risk” that the defendant will flee or (7) there is a
`“serious risk” that if released the defendant will obstruct justice or injure, intimidate
`or harm a witness. 18 U.S.C. § 3142(f). If one of these defined circumstances does
`not exist, the Court is without authority to hold a detention hearing.
`In order to seek a detention hearing based on risk of flight, the government
`must prove by a preponderance of the evidence that the defendant poses a serious
`
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`1 This case does not involve any statutory presumption of detention.
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`flight risk. Motamedi, 767 F.2d at 1407. The government’s burden is even higher if
`it moves for a detention hearing based on one of the five designated grounds relating
`to dangerousness. There, the government must prove by clear and convincing
`evidence that the defendant poses an actual danger to the community, rather than a
`theoretical one. See 18 U.S.C. § 3142(f); United States v. Patriarca, 948 F.2d 789
`(1st Cir. 1991). If the government meets its initial burden and a detention hearing is
`held, the defendant should not be ordered detained absent a finding that no condition
`or combination of conditions of release will reasonably assure the defendant’s future
`appearance and the safety of the community. 18 U.S.C. § 3142(f).
`In deciding whether conditions could reasonably assure the defendant’s
`appearance and the safety of the community, courts are to evaluate: the nature and
`circumstances of the offense charged; the weight of the evidence against the person;
`the history and characteristics of the person, including family ties, length of
`residence, past conduct, drug or alcohol abuse, and criminal history; and the nature
`and seriousness of the danger to any person or the community posed by the person’s
`release. 18 U.S.C. § 3142(g).
`A defendant ordered detained by a magistrate judge may file an appeal of that
`decision, pursuant to 18 U.S.C. § 3145(b). Under this provision, the District Court
`must conduct its own de novo review of the detention order. United States v.
`Koenig, 912 F.2d 1190, 1191 (9th Cir. 1990). In its review, the District Court may
`consider “newly developed evidence that was not presented at the prior hearing.”
`United States v. Freitas, 602 F. Supp. 1283, 1293 (N.D. Cal. 1985); see also United
`States v. Fortna, 769 F.2d 243, 250 (5th Cir. 1985) (district court should consider
`record plus additional evidence); United States v. Dolby, 928 F.3d 1199, 1208 (10th
`Cir. 2019) (Section 3145(b) governs de novo review by the district judge of the
`magistrate judge’s decision, and it allows the district judge to consider new
`evidence).
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`V. ANALYSIS
`A. As the Magistrate Judge Found, Mr. Hung Is Not A Flight Risk
`Mr. Hung was born and raised in Southern California. He attended and
`graduated from San Marino High School. He is married to Emily Shen, also born
`and raised in Southern California, and they are expecting their first child next
`month. Hrg. Tr. 31:20-23. Mr. Hung is close to his parents and his siblings as well
`as his extended family in this district. In other words, Mr. Hung has deep and
`extensive ties to and support from this community. See Exhibit 1. Moreover, Mr.
`Hung is employed, has no prior record, is fully compliant with the bond conditions
`in his pending related state court matter, and has no history of failing to appear in
`court.
`As set forth above, Mr. Hung proffered a justified bond in the amount of
`$3,525,000. Hrg. Tr. 31:20-23. Moreover, to further minimize any potential for
`concern, Mr. Hung has suggested GPS monitoring by PTS and other restrictive
`release conditions. Accordingly, the Magistrate Judge correctly concluded that any
`potential risk of flight could be mitigated by the bond proposed by the defense in
`this case. Order 5:8-12.
`B. Mr. Hung Is Not A Danger To The Community
`The government claimed that two factors demonstrate that Mr. Hung presents
`a danger to the community: First, the government asserted its investigation has
`revealed that Mr. Hung harbors a “violent ideology.” Second, the government
`asserted that Mr. Hung committed acts of violence during a protest in Pasadena on
`May 31, 2020. A careful review of the facts, however, including new evidence that
`was not considered by the Magistrate Judge, demonstrates that both assertions are
`incorrect. Mr. Hung’s political views are neither radical nor violent and he has
`never harmed nor attempted to harm anyone, on May 31 or any other date. Nor is
`he a threat to the community. Significantly, he is not charged with a crime of
`violence, he has no criminal history or history of violence, and he has strong support
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`from his family and community as a law-abiding and good person.
`1. Mr. Hung’s Actions On May 31 Do Not Demonstrate That
`He Is A Danger To The Community
`On the afternoon of May 31, 2020, Mr. Hung and his pregnant wife were
`shopping along Colorado Boulevard in Pasadena, including at a Michael’s art
`supplies and craft store, which is approximately 2.4 miles from their home. At 4:48
`p.m., they completed a purchase at Michael’s on Colorado Boulevard. A copy of
`the store receipt is attached as Exhibit 5. At Michael’s, the Hungs purchased
`baking cups, crochet yarn, and other craft supplies.
`According to the Pasadena Police report from the May 31 incident, at
`approximately 4:58 p.m., the Hungs approached the intersection of Colorado
`Boulevard and Fair Oaks, approximately 1.4 miles west of Michael’s. By that time,
`protestors had taken over and blocked the intersection of Colorado Boulevard and
`Fair Oaks. Media coverage, photographs, and video from that protest show that
`emotions were running high as the protestors blocked the streets at the intersection
`of Colorado and Fair Oaks.
`The government asserted in the detention hearing that the other cars that
`approached the crowd of protesters “all make u-turns” and that “the protesters aren’t
`coming at any of the cars.” Hrg. Tr. at 40:18-22. However, the Pasadena Now
`coverage of the protest at this intersection on May 31, 2020, shows otherwise.2 That
`report contains photos of the protest that show vehicles trying to drive through the
`intersection with protestors striking and/or climbing on the vehicles:
`
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`2 Images from the May 31, 2020, incident were taken from Pasadena Now’s
`coverage of the May 31, 2020, protests and is available here:
`https://www.pasadenanow.com/main/protesters-march-again-in-pasadena/. This is
`the same media report cited in the Affidavit in support of the Complaint. See
`Affidavit at ¶ 17 fn. 2.
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`Video footage from multiple sources depict what happened as the Hungs
`approached and proceeded through the intersection. Copies of these videos are
`being submitted separately on a USB drive as Exhibit 6.
`Specifically, the videos demonstrate that, as Mr. Hung approached Fair Oaks,
`he sounded his vehicle’s loud horn and slowed down, stopping at the intersection.
`He again sounded the horn and thereafter turned left onto Fair Oaks after protestors
`moved out of the way. As Mr. Hung turned at the intersection, he once again braked
`and continued to use his horn—clearly signaling for people to move out of the
`roadway, which they all did. Significantly, no one was hit by the truck.
`Video shot from inside the truck reveals that, as the Hungs approached the
`intersection, a person threw an object that appears to be a cup at the passenger side
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`of the vehicle, where Mr. Hung’s wife sat:
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`As the Hungs entered the intersection, another individual chased after and
`attempted to grab a flag mounted on the rear of the truck:
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`As the truck proceeded to make the left turn onto Fair Oaks, yet another
`person appeared to hit the driver side of the truck, and someone else threw an object
`at the passenger side of the truck:
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`After Mr. Hung made a left onto Fair Oaks, he then turned left again onto
`Green Street. Pasadena Police Department (“PPD”) officers received a call to stop
`Mr. Hung. Officers pulled him over at Euclid and Green Street, approximately half
`a mile from the intersection of Colorado and Fair Oaks. He was immediately
`responsive and cooperative. The PPD officers detained Mr. Hung and his wife, who
`both fully complied with the officers’ requests. Soon after detaining Mr. Hung and
`his wife, a large group of protestors approached the area. The PPD officers then
`placed the Hungs into the patrol car and transported them to the police station “for
`our safety, the safety of Hung and [his wife], and for the safety of their vehicle.”
`During a search of the truck, PPD officers found a loaded handgun, a metal pipe,
`and a machete. Importantly, there is no evidence and the government has not
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`alleged that Mr. Hung reached for or in any way attempted to use any of these items
`during the May 31 incident.
`PPD officers arrested Mr. Hung for attempted assault with a deadly weapon
`based on his act of driving his truck through the intersection. However, after two
`prosecutor’s offices reviewed the incident, no assault charges were filed against Mr.
`Hung. Initially, the Los Angeles County District Attorney’s Office declined to file
`charges and referred the investigation to the Pasadena City Prosecutor’s Office,
`which charged Mr. Hung with a misdemeanor firearm possession offense.
`The videos are objectively and strikingly contrary to the government’s
`assertions that Mr. Hung accelerated into the crowd of protestors and that he
`intended to strike protestors. Rather, the videos reveal Mr. Hung driving
`defensively and carefully as he navigated through the crowd of people, who were
`congregating and moving erratically through the middle of the street. Mr. Hung
`honked his horn a number of times, including as he approached the intersection in
`order to get the crowd to move out of the road so he could pass. If Mr. Hung
`intended to harm anyone, he would not have honked first, nor would he have braked
`both as he approached the intersection and as he was turning. Moreover, as
`reflected in a video, Mr. Hung’s wife can be heard instructing Mr. Hung to “horn”
`them, not to run them over or do anything violent. Hrg. Tr. 41:6-8. Grasping at
`straws, the government emphasizes that Mr. Hung’s horn was very loud: “Not just a
`normal car horn, your honor. It’s a modified horn to sound like a train horn.” Hrg.
`Tr. 41:10-11. Mr. Hung’s act of repeatedly sounding this loud horn as he
`approached the protestors, however, demonstrates that Mr. Hung was trying to warn
`them, not strike them.
`In an attempt to bolster its argument that Mr. Hung intended to strike the
`protestors, the government claimed that Mr. Hung sought out the protestors on May
`31, and the Magistrate Judge agreed. Order 3:13-15. As discussed above, recent
`evidence—unavailable at the initial detention hearing—establishes that Mr. Hung
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`was out shopping with his wife in Pasadena just before the incident. In fact, the
`receipt from Michael’s and the police report taken together indicate that Mr. Hung
`found himself detained by law enforcement within minutes of leaving Michaels. It
`simply strains reason to believe that Mr. Hung was searching for protestors with the
`intent to harm them that day, but decided to make a quick detour into a crafts store
`with his pregnant wife prior to descending upon the protest.
`In support of its claim that Mr. Hung expressly sought out the protestors with
`an intent to strike them on May 31, 2020, the government claimed that he was at the
`scene of a protest in the same area on the day prior. The government relied on a
`statement from a witness who explained that, on May 30, 2020, after a protest had
`broken up, the witness saw a truck matching the description of Mr. Hung’s truck
`that was driven by an Asian male. The witness claimed that the truck made a U-turn
`and then “coal rolled” the witness as it drove by. Crim. Compl. 29. As the
`government’s affidavit explains, the witnesses’ description of “coal rolling” refers to
`driving past a person such that exhaust from the vehicle blows onto them. Even if
`the Court were to find this evidence sufficient to establish that Mr. Hung was the
`person observed by the witness, the evidence does not show that Mr. Hung initiated
`or engaged in any violence. While “coal rolling” as the government described may
`be annoying and even distasteful and rude, such conduct is not violent.
`The government also points to the flags on his truck as proof of Mr. Hung’s
`“strong violent ideology.” Crim. Compl. 2; Hrg. Tr. 37:8. That assertion is absurd.
`Mr. Hung’s truck bore a Betsy Ross flag, an early design of the U.S. flag
`symbolizing American independence; a Gadsen flag, a design indicating support for
`civil liberties; and a “Thin blue line” flag, showing support for law enforcement.
`Countless non-violent and law-abiding citizens own and carry such flags. Mr. Hung
`used a variant of the “Thin blue line” flag during his participation in an annual (and
`peaceful) Rotary Parade. See Exhibit 2. To claim based on these flags that Mr.
`Hung harbored a “strong violent ideology,” and thus should be detained, offends
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`free speech protections and represents gross prosecutorial overreach.
`The events that occurred on May 31, 2020, do not support a finding that Mr.
`Hung is a danger, much less a finding by clear and convincing evidence that no
`conditions of release could reasonably assure the safety of the community.
`2. Mr. Hung’s Possession of Firearms, Weapons, And Other
`Equipment Does Not Demonstrate That He Is A Danger To
`The Community
`The May 31, 2020 incident sparked a federal investigation into Mr. Hung.
`Search warrants were issued against Mr. Hung’s San Marino residence and his
`family’s vineyard and house in Lodi, California. The government also obtained Mr.
`Hung’s cell phone records, text messages, Google account, PayPal, Wells Fargo,
`and iCloud records. The search warrants were executed on September 23, 2020. No
`firearms were seized from the San Marino house. The government seized two
`handguns and seven rifles from the Lodi house, and ten handguns, ten rifles,
`ammunition, and related items from his parent’s vineyard in Lodi. The government
`has asserted that Mr. Hung’s electronic communications, bank records, iCloud
`account, and PayPal records show that Mr. Hung has acquired firearms, scopes, and
`other related items through various sources, including Amazon, since approximately
`December 2017. Nearly all of these items were stored and ultimately seized from
`the Lodi vineyard and residence. The government also presented text messages and
`other evidence showing that Mr. Hung has used the Lodi vineyard to shoot weapons.
`Possession, ownership, or even theft of firearms do not mandate pretrial
`detainment. In United States v. Marquez, 18-CR-00197-CRB-1, 2018 WL 4773152,
`at *3 (N.D. Cal. Oct. 3, 2018), the defendant allegedly stole 55 firearms, only fifteen
`had been recovered, two at crime scenes, and forty were still missing. The
`defendant had also posted photos of himself with firearms. Id. at *3. In reversing
`the detention order, the District Court pointed out that, as here, the defendant did not
`have a criminal record and no longer had access to the numerous stolen firearms.
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`Id. While the government’s evidence and the extensive collection of gear
`demonstrates Mr. Hung’s deep and abiding desire to protect himself and his family,
`and perhaps an enjoyment of using firearms in a recreational setting, it does not
`demonstrate an intent to physically strike out in aggression against anyone in the
`community. Mr. Hung has absolutely no history of violent conduct against anyone.
`There is no evidence in the record that he got into fights as a student; there is no
`evidence that he has initiated any physical altercations as an adult; and in fact, there
`is no evidence that he has been physically assaultive towards anyone at any point in
`his entire life. Owning weapons for self-protection or recreational use may not be
`an option that everyone chooses, but the desire to protect oneself and one’s family
`from harm’s way does not evince danger.
`3. Mr. Hung’s Communications Do Not Demonstrate That He
`Is A Danger To The Community
`The government also highlighted several communications, selectively pulled
`from its review of nearly three years of data, that the government claims establish
`Mr. Hung’s “violent ideology.” However, upon closer analysis of the cited text
`messages, the government’s claim that Mr. Hung harbors such “violent ideology”
`and that no conditions of release could protect the public fails.
`First, the government has not yet produced discovery of these
`communications beyond what is alleged in the complaint affidavit, so the full
`context of the messages is not clear.
`Second, the communications that have been provided do not show that Mr.
`Hung has ever committed an act of violence against another person.
`Third, to the extent the messages exhibit any discussion of violence by Mr.
`Hung, they all relate to potential defensive actions. For instance, one of the
`messages cited by the government in the detention hearing, which the government
`characterized as the “most troubling,” was a series of text messages that Mr. Hung
`sent to himself stating that if anybody comes to harm him, they better be ready for
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`the “seventh level of hell.” Hrg. Tr. at 54:9-11.
`Finally, many text messages cited by the government were messages written
`by other persons, not by Mr. Hung.
`The text messages proffered by the government do not support detention.
`Some are politically charged. Others reflect a passion for firearms. Others still
`reflect a desire to protect himself and his loved ones from any harm. Many are less
`than mature, written in pop culture/video game speech. But not a single text is a call
`to incite physical violence. Moreover, not a single text brags of any act of past
`violence by Mr. Hung. There is no such evidence of any violent behavior in any of
`his texts because Mr. Hung has never committed any violent actions against anyone.
`Texting feels private. It is an intimate and informal form of constitutionally –
`protected communication. Had Mr. Hung been committing violent acts or inciting
`others to do so, there would be texts to prove it. Here, there are none. This Court
`should decline to detain an individual with no prior record and no history of a single
`act of violence based on some errant texts plucked out of a sea of likely mundane
`text communications over a three-year period.
`C. There Are Conditions of Release That Can Reasonably Assure Mr.
`Hung’s Future Appearances And The Safety of The Community
`The government has failed to prove that Mr. Hung is a serious flight risk or a
`danger to the community. This Court should therefore release Mr. Hung on bond.
`Moreover, to the extent that the Court concludes that more restrictive conditions of
`release are necessary in order to reasonably assure his return to court and the safety
`of the community, Mr. Hung respectfully submits that 24-hour GPS monitoring by
`PTS would be appropriate. Such monitoring would allow the Court through PTS to
`track his every movement. This real-time monitoring of his compliance w