Petition for Writ of Certiorari — Kyle Wagner, Petitioner v. United States
Supreme Court briefSep 18, 2026
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APPENDIX
TABLE OF CONTENTS
Page
APPENDIX A—Sixth Circuit’s Opinion
(Aug. 12, 2026) .................................................... 1a
APPENDIX B—District Court’s Order Setting
Conditions of Release (Mar. 25, 2026).............. 65a
APPENDIX C—Hearing Transcript on
Appeal of Detention Order (Mar. 24,
2026) .................................................................. 80a
APPENDIX D—Hearing Transcript on
Appeal of Detention Order (Mar. 25,
2026) ................................................................ 119a
APPENDIX E—Criminal Complaint (Feb. 3,
2026) ................................................................ 160a
APPENDIX F—Indictment (Feb. 11, 2026)......... 189a
APPENDIX G—Statutory Provisions
Involved:
18 U.S.C. § 3142 .............................................. 196a
18 U.S.C. § 3145 .............................................. 208a
i
1a
APPENDIX A
_________
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________
UNITED STATES OF AMERICA,
Plaintiff—Appellant,
v.
KYLE WAGNER,
Defendant—Appellee.
_________
No. 26-1294
_________
Appeal from the United States District Court for the
Eastern District of Michigan at Detroit.
No. 2:26-cr-20059-1—Denise Page Hood, District
Judge.
Decided and Filed: August 12, 2026
Before: NORRIS, BLOOMEKATZ, and
HERMANDORFER, Circuit Judges.
_________
COUNSEL
ON BRIEF: Danielle Asher, UNITED STATES
ATTORNEY’S OFFICE, Detroit, Michigan, for
2a
Appellant. Jean Pierre Nogues, OFFICE OF THE
FEDERAL COMMUNITY DEFENDER, Detroit,
Michigan, for Appellee.
HERMANDORFER, J., delivered the opinion of the
court
in
which
NORRIS,
J.,
concurred.
BLOOMEKATZ, J. (pp. 18-42), delivered a separate
dissenting opinion.
_________
OPINION
_________
HERMANDORFER, Circuit Judge. A grand jury
indicted Kyle Wagner for cyberstalking and
transmitting interstate threats. The conduct giving
rise to the indictment followed a series of escalating
communications in which Wagner threatened federal
law-enforcement officers and their supporters,
solicited resources to evade detection by the
authorities, and entertained an inquiry about killing
a former government official. A magistrate judge
ordered Wagner detained pretrial. But the district
court changed course and permitted Wagner’s release.
Though acknowledging that the record exhibited some
risk of Wagner’s danger, the district court reasoned
that certain release conditions—like requiring
Wagner’s assurances that he will limit his internet
access and avoid making additional threats—would
adequately ensure public safety. The Government
appealed and sought an emergency stay of the release
order, which we granted. We now reverse the district
court’s decision.
3a
I
A
Kyle Wagner is a self-professed member of Antifa1—
short for anti-fascist—based in Minneapolis,
Minnesota.
Wagner has stated that he’s willing to die in what
“he view[s] as” an “ideological battle” against “violent
fascist government actions and its supporters.”
Wagner Br. 3-4. Around January 2026, Wagner
undertook a series of escalating steps to oppose
Immigration and Customs Enforcement’s actions in
Minneapolis and broadcast his efforts to a socialmedia following. As the month progressed, Wagner’s
social-media posts transitioned into direct calls for
violence against federal agents and their supporters.
A few examples paint the picture. Wagner
proclaimed that the situation in Minneapolis was “kill
or be killed.” E.D. Mich., Complaint, R.1, PageID 9. In
that same post, Wagner encouraged his online
followers to “hunt” ICE by “sacrific[ing]” their
1
Referencing a 2025 Executive Order, the Government
identifies Antifa as “a designated domestic terrorist
organization.” Gov’t Br. 24; see Designating Antifa as a Domestic
Terrorist Organization, 90 Fed. Reg. 46,317 (2025) (describing
Antifa as “a militarist, anarchist enterprise” that “uses illegal
means to organize and execute a campaign of violence and
terrorism”). Wagner disputes that characterization and claims
that Antifa is instead “a broad, community-based movement
composed of individuals organizing against racial and economic
injustice.” Wagner Br. 19 n.9 (citation omitted). Because our
decision turns only on evidence of Wagner’s specific conduct, we
can leave the parties’ broader debate about the nature of Antifa
to the side.
4a
“vehicles.” Id. at PageID 8. In other posts, Wagner
declared that he and his followers were “f**king
coming for” ICE and were “coming for [ICE’s
supporters] too.” Id. at PageID 6, 13. Wagner urged
his followers to “f**king fight” ICE and “put[] hands”
on law-enforcement agents and “take their f**king
guns.” Id. at PageID 11, 23-24. He suggested that he
and his followers should “have a little f**king fun” by
“identify[ing] every single” ICE agent, “at the barrel
of a gun” if necessary. Id. at PageID 17. Wagner also
lamented that protestors had yet to “march on f**king
Whipple”—the federal building in Minneapolis—
“with guns.” Id. at PageID 26. He therefore directed
his followers to “[g]et your f**king guns and stop these
f**king people.” Id. Wagner prefaced that directive by
exclaiming that he was “not talking about peaceful
protests anymore.” Id. Other videos of Wagner’s
stressed that Minneapolis was “where ICE has come
to die.” Id. at PageID 16.
At points, Wagner disavowed any intent to commit
physical aggression. Still, Wagner’s followers—
spanning Minnesota and beyond—understood him to
be calling for violence. In response to one of Wagner’s
posts, an Instagram user referenced firearms,
commenting that it’s “[t]ime for [ICE agents] to meet
your friends. Namely AR15 and 9MM.” Id. at PageID
17. Others expressed interest in joining Wagner’s
“cause” from out of state. Id.
Wagner also sought tangible resources from his
followers to aid his efforts to “organize.” Id. at PageID
13. Wagner specifically requested funds to help him
“evade” detection by law enforcement. Id. And he
provided the name of several financial-payment
5a
accounts for use in transferring him money. Id. In all,
Wagner’s followers sent him between $10,000 and
$15,000.
After Wagner posted calls for “[b]oots on the ground”
to a local intersection near ICE agents and urged his
followers to “[g]et your f**king guns and stop these
f**king people,” Instagram deleted Wagner’s account.
Id. Yet he quickly resurfaced with a different
account—employing the username “@antifa.kaos”—
and a new series of online postings. Id. at PageID 27.
Among other things, Wagner used his updated
account to publish a video of him distributing gas
masks and riot shields at a protest.
Wagner’s activities were not just public facing. In
one private Signal chat, a user allegedly contacted
Wagner with a request to help “kill” a man named
J.P., a former high-ranking government official. E.D.
Mich., Detention Hearing Day 2 Tr., R.24, PageID
131, 139. Wagner responded in the chat that “we do
stuff, me and my family of friends” and “[w]e like to
know about people who deserve consequences.” Id. at
PageID 131. He then asked for “credible verifiable
information” that he could pass onto his “team” so it
could “assess the situation.” Id. at PageID 131-32. In
another chat, Wagner allegedly stated that he “may
have found” the address and phone number of N.S., an
individual “who did investigative work.” Id. at PageID
134-35.
On January 29, 2026, Wagner allegedly “doxxed”
J.S., “a pro-ICE individual,” by publishing what he
claimed was J.S.’s name, phone number, birth month
and year, and address. E.D. Mich., Complaint, R.1,
PageID 5. Alongside that information, Wagner
6a
described J.S. as a “bb nazi boy” and said “we can all
knock on strangers doors . . . See you soon kiddo —
stay safe out here.” Id. at PageID 30. After the alleged
doxxing, J.S. and Wagner apparently discussed
fighting in a cage match. In a subsequent post,
Wagner allegedly published what he thought was the
address and phone number of J.S.’s parents.
B
Several days later, the Government filed a criminal
complaint charging Wagner with one count of
cyberstalking and one count of transmitting interstate
threats for his alleged doxxing of J.S. Wagner was
subsequently arrested in Minnesota. During his
arrest, Wagner allegedly began “pushing” agents and
“spitting on them” while stating that he would “beat”
them. D. Minn., Detention Hearing Tr., R.13, Page 38.
He also told the arresting agents “[d]on’t let me out.”
Id. During his booking photo, Wagner flashed two
middle fingers at the camera. His message: “This is
for the judge.” Id. at Page 21.
Following a detention hearing, a magistrate judge in
Minnesota ordered Wagner detained pretrial under
the Bail Reform Act. In the detention order, the
magistrate judge stated that Wagner was “a danger to
the community” given his “implied threat to injure,
harass or intimidate J.S. and his parents” and his
“voluminous” social-media posts “encourag[ing] his
supporters to join him in obstructing, impeding, and
assaulting officers.” D. Minn., Detention Order, R.11,
Page 3. The magistrate judge further explained that
Wagner’s “lack of job security,” “admitted lack of
stable housing,” and expressed “desire to ‘evade’ law
enforcement” rendered him a flight risk. Id.
7a
Wagner’s criminal case was then transferred to the
Eastern District of Michigan, where the Government
had filed the criminal complaint. A grand jury in the
Eastern District of Michigan later indicted Wagner for
one count of cyberstalking, 18 U.S.C. § 2261A(2), and
one count of interstate communications involving
threats, id. § 875(c).
Meanwhile, Wagner appealed the magistrate judge’s
detention order. The district court held an evidentiary
hearing and argument on the pretrial-detention
factors. See id. § 3142(g). At the hearing’s conclusion,
the district court issued an oral ruling revoking the
magistrate judge’s detention order and releasing
Wagner.
The district court’s subsequent written order
memorialized Wagner’s release to his mother’s home
in Minnesota subject to a series of conditions. Those
conditions required, among other things, that Wagner
submit to GPS monitoring, “refrain from posting on
social media,” forgo accessing the internet with
anything other than two approved devices (one phone
and one computer), and that he “[n]ot engage in
assaultive, threatening, or harassing behavior or
statement[s].” E.D. Mich., Release Order, R.23,
PageID 118.
The Government appealed the district court’s order
and sought a stay pending appeal. We granted the
motion for a stay in a prior order.
Since then, the Government has obtained a second
grand jury indictment against Wagner in the District
of Minnesota. That indictment charges Wagner and
several others with conspiracy to impede or injure a
federal officer, solicitation to commit a crime of
8a
violence, and transmitting interstate threats. Wagner
has entered a plea of not guilty.
II
The Bail Reform Act sets out the factors courts must
use in determining whether to detain or allow the
release of a criminal defendant before trial. In the
mine-run case, the Act’s policy favors release. United
States v. Stone, 608 F.3d 939, 945 (6th Cir. 2010). But
like any “default position,” that policy can be
overcome. Id. Relevant here, the statute directs that
courts “shall order the detention of a defendant
pretrial if “no condition or combination of conditions
will reasonably assure the appearance” of the
defendant “as required and the safety of any other
person and the community.” 18 U.S.C. § 3142(e)(1).
When assessing those risks, courts must consider (1)
“the nature and circumstances of the offense charged,”
(2) “the weight of the evidence against the” defendant,
(3) the defendant’s “history and characteristics,” and
(4) “the nature and seriousness of the danger to any
person or the community that would be posed by the
[defendant’s] release.” Id. § 3142(g). The Government
must prove dangerousness by clear and convincing
evidence. Stone, 608 F.3d at 945.
For the reasons below, we hold that the Government
has met its burden of proving Wagner’s
dangerousness. And given the nature of Wagner’s
prior conduct, we further conclude that no condition
or combination of conditions will reasonably assure
the safety of J.S. and the community. The Bail Reform
Act therefore mandates Wagner’s pretrial detention.
9a
A
We begin with the standard of review. When
assessing pretrial detention under the Bail Reform
Act, we have held that “mixed questions of law and
fact” and “legal conclusions” are subject to “de novo
consideration.” United States v. Hazime, 762 F.2d 34,
37 (6th Cir. 1985). More recently, in Stone, we
reiterated that the “ultimate question whether
[pretrial] detention is warranted” is subject to “de
novo” review. 608 F.3d at 945 (citing Hazime, 762 F.2d
at 37). By contrast, “[w]e review the district court’s
factual findings for clear error.” Id. Our framework—
de novo review for the ultimate application of the
statutory factors to the detention determination, and
clear-error review for findings of fact—tracks the
circuits’ prevailing approach to reviewing detention
decisions under the Bail Reform Act. See Jefri Wood,
The Bail Reform Act of 1984 § VII, pp.57-58 (Fed. Jud.
Ctr. 4th ed. 2022) (collecting cases).
The dissent favors a more deferential standard for
reviewing the ultimate detention conclusion. And it
reads our precedents to leave that option on the table.
But Hazime directly addressed when and how
deference factored into review of detention
determinations. See 762 F.2d at 36-37. And it
concluded that de novo review governed the ultimate
issue of detention. Id. That Hazime then remanded for
further consideration does not mean the standard “did
not contribute to the judgment,” Dissenting Op. 28
(citation omitted)—after all, had the dissent’s acrossthe-board deference rule prevailed, Hazime might
have simply affirmed. So like other courts and
10a
commentators,2 we take Hazime and Stone to mean
what they say: We review de novo “whether detention
is warranted.” Stone, 608 F.3d at 945.
Subsequent caselaw developments do not license a
departure from that rule. No intervening Supreme
Court decision contains “directly applicable analysis”
that is “inconsistent” with what “we’ve said” about the
standard of review for detention decisions. RLR
Investments, LLC v. City of Pigeon Forge, 4 F.4th 380,
390 (6th Cir. 2021) (citation omitted). The dissent’s
reliance on different standard-of-review analyses in
other law-fact contexts does not reveal anything that
“mandates modification” of our Bail Reform Act
decisions. Id. (citation omitted). So whatever the firstinstance case for applying deferential review, we lack
power here to revisit our precedents. See Soaring
Eagle Casino & Resort v. NLRB, 791 F.3d 648, 662
(6th Cir. 2015).
We also disagree with Wagner’s argument that
United States v. Chilingirian, 280 F.3d 704, 709 (6th
Cir. 2002), supports abuse of discretion review.
Chilingirian involved a convicted defendant’s request
for release pending appeal—not release pretrial—and
never cited Hazime. Id. Instead, Chilingirian’s abuseof-discretion assertion rested exclusively on Lee v.
Jabe, 989 F.2d 869 (6th Cir. 1993). Lee, though, dealt
with a state prisoner’s challenge to the denial of bail
pending adjudication of a federal habeas petition. Id.
2
See, e.g., Wood, Bail Reform Act § VII, p.58; United States v.
Manafort, 897 F.3d 340, 346 n.2 (D.C. Cir. 2018); United States
v. Westbrook, 780 F.2d 1185, 1189 n.7 (5th Cir. 1986).
11a
at 870. Lee is not a Bail Reform Act case, and so it does
not implicate our Bail Reform Act rule.
B
We now turn to the merits. The Government argues
that Wagner is a danger to both J.S. and the broader
community. It also argues that Wagner is a flight risk.
We agree with the Government that it carried its
burden on dangerousness. Because that conclusion is
sufficient to support Wagner’s detention, we need not
address risk of flight.
To establish a defendant’s dangerousness, the
Government must “identify an articulable threat
posed by the defendant to an individual or the
community.” United States v. Munchel, 991 F.3d 1273,
1283 (D.C. Cir. 2021). That requirement does not limit
detention to only those defendants who have “engaged
in violence” personally. Stone, 608 F.3d at 947 n.6
(collecting cases). A “threat” sufficient to establish
dangerousness “need not be of physical violence, and
may extend to non-physical harms.” Munchel, 991
F.3d at 1283 (citation omitted). And when
determining whether the Government has met its
burden of proving dangerousness, “we may consider
as evidence” conduct that “does not relate to the
offenses charged.” Stone, 608 F.3d at 953; see also
United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir.
1991). With those points in mind, we consider the four
§ 3142(g) factors in turn.
1. Nature and Circumstances of the Offense.
Wagner’s conduct led a grand jury to indict him on two
felonies involving threatened harm to others—
cyberstalking and transmitting threats through
interstate communication. The cyberstalking charge
12a
alleges that Wagner acted “with the intent to kill,
injure, harass, and intimidate” J.S. by using “the
internet and the social media application Instagram[]
to engage in a course of conduct that caused,
attempted to cause, and would reasonably be expected
to cause substantial emotional distress to J.S.” E.D.
Mich., Indictment, R.10, PageID 49-50 (citing 18
U.S.C. § 2261A(2)). The interstate-threats charge
alleges that Wagner “knowingly transmitted in
interstate commerce” a “communication containing a
threat to injure” J.S. “with knowledge” and “reckless
disregard that the communication[] would be viewed
as a threat.” Id. at PageID 50 (citing 18 U.S.C. §
875(c)). Both charges stem from Wagner’s attempt to
“doxx[]” J.S. and his parents with a message that, in
context, appears to threaten J.S. with harm. E.D.
Mich., Complaint, R.1, PageID 29-30. Given those
charges, the nature and circumstances of the offenses
weigh in favor of Wagner’s detention on
dangerousness grounds. See United States v. Hagar,
822 F. App’x 361, 369 (6th Cir. 2020) (deeming similar
charges “extremely serious”).
Neither Wagner nor the dissent disputes that the
charged offenses are serious. And indeed, this Court
has before characterized Wagner’s charged offenses—
cyberstalking and transmitting interstate threats-as
categorically “crimes of violence.” United States v.
Lidderdale, 2025 U.S. App. LEXIS 33235, at *9-10
(6th Cir. Dec. 18, 2025) (collecting cases). Wagner’s
interstate-threats charge requires a “threat to kidnap
any person or [a] threat to injure the person of
another.” 18 U.S.C. § 875(c). Courts have likewise
read the cyberstalking statute to cover a more limited
13a
category of threatening speech. See, e.g., United States
v. Yung, 37 F.4th 70, 80 (3d Cir. 2022). That forecloses
the district court’s observation that the charged
offenses could sweep in minor conduct like schoolyard
“bullying.” E.D. Mich., Detention Hearing Day 2 Tr.,
R.24, PageID 149-50. So discounting Wagner’s
charges on that ground was legally unsound.
That leaves Wagner to argue that the “alleged
criminality in this case” lacks weight given the
particulars of his conduct. Wagner Br. 15. Driving
Wagner’s position is that the threats were “directed at
a single individual, J.S.,” “who purposefully trolls his
political opponents to generate responses and views
by followers.” Id. But we are aware of no rule that
permits cyberstalking or interstate threats so long as
the victim has a controversial persona. Nor is now the
time to litigate the Government’s ability to ultimately
prove Wagner’s guilt at trial. Wagner posted J.S.’s
information and address to his many followers, called
J.S. “nazi boy,” and said “see you soon kiddo.” E.D.
Mich., Indictment, R.10, PageID 50 (cleaned up). A
grand jury concluded that such communications
constituted evidence of “a threat to injure the person
of another.” Id. The district court, too, indicated that
the specific charges against Wagner were “very
serious.” E.D. Mich., Detention Hearing Day 2 Tr.,
R.24, PageID 149-50. All that weighs against
attempts to mitigate the nature and circumstances of
Wagner’s offenses by downplaying the risk of
potential harm to J.S or others.
Nor are we persuaded by the dissent’s comparative
assessment of Wagner’s conduct. The fact that
Wagner’s conduct could have been worse does not
14a
mean it weighs in favor of dangerousness only
“slightly.” Dissenting Op. 30. To the contrary, the
district court noted that “there are a lot of things” in
the record “that point to at least some active . . .
concerns relative to [the] danger posed by the
defendant” to J.S. and others. E.D. Mich., Detention
Hearing Day 2 Tr., R.24, PageID 146-47. We agree.
2. Weight of the Evidence. The “weight of the
evidence”
also
points
towards
Wagner’s
dangerousness. 18 U.S.C. § 3142(g)(2). “This factor
goes to the weight of the evidence of dangerousness,
not the weight of the evidence of the defendant’s
guilt.” Stone, 608 F.3d at 948.
Wagner’s specific incident with J.S. followed weeks
of posts that included communications the district
court found could be interpreted as “actual threats”
against federal law-enforcement authorities and their
supporters. E.D. Mich., Detention Hearing Day 2 Tr.,
R.24, PageID 145. Those posts—appearing in the
record verbatim—included calls for Wagner’s
followers to “put[] hands on” ICE, “fight” ICE, and
“[g]et your f**king guns and stop” ICE. E.D. Mich.,
Complaint, R.1, PageID 23-24, 26. In some of those
posts, Wagner explained that he was “done with
peaceful protests,” that he was “not talking about
peaceful protests anymore,” and that it was “kill or be
killed.” Id. at PageID 9, 24, 26. Such threatening
statements
“weigh[]
strongly
in
favor
of
dangerousness.” Stone, 608 F.3d at 949.
In addition to those posts, Wagner communicated
with a Signal user about killing J.P., a former
government official. In that conversation, which
occurred two days before his arrest, Wagner said that
15a
if the user provided him with “credible verifiable
information,” he would pass it along to “people who
can” mete out “consequences” to J.P. E.D. Mich.,
Detention Hearing Day 2 Tr., R.24, PageID 131. The
unknown Signal user responded “[h]ow can I trust
you?” Id. at PageID 132. The record reflects that
Wagner and the unknown user then connected via an
incoming call. Id. Afterwards, the user sent additional
information about J.P., including a “phone number,
address, [and] E-mail.” Id. In response, Wagner
stated, “[w]e have to walk through fire.” Id. That
Wagner pitched himself as able to assist in soliciting
a murder evidences his dangerousness. So does a
separate January 2026 incident in which Wagner
distributed a “current address” for an individual
named N.S. with the message: “I may have found
where he’s hiding.” Id. at PageID 135.
Wagner’s counterarguments do not persuade. To
start, Wagner contends that “[t]he government’s case
on the charged offenses is weaker than its brief
suggests.” Wagner Br. 16. And throughout these
proceedings, Wagner has insisted that his prosecution
boils down to a political vendetta. But those responses
do not affect the detention calculus. As already
explained, the “weight of the evidence” referenced in §
3142(g)(2) “goes to the weight of the evidence of
dangerousness, not the weight of the evidence of the
defendant’s guilt” on the indicted offenses. Stone, 608
F.3d at 948. Wagner’s characterization also does not
account for the grand jury’s indictment, which “by
itself, establishes probable cause to believe that
[Wagner] committed the crime[s] with which he is
charged.” Id.
16a
Wagner next takes issue with the Government’s
reliance on his social-media posts and chats to prove
dangerousness. His argument is both legally and
factually flawed. As a legal matter, “we may consider
as evidence of dangerousness” a defendant’s
“statements indicating a violent intent” even though
those statements “do[] not relate to the offenses
charged.” Id. at 953. Courts routinely consider a
defendant’s threatening statements, among other
speech, when determining whether the defendant
poses a danger to the community.3
As for the facts, they do not support the
characterization of Wagner’s posts as exclusively calls
to
“practice
non-violent
obstructive
protest
techniques.” Wagner Br. 19-20. The district court
acknowledged the “very strong argument that there
was some protection of the public involved” in
detaining Wagner pretrial. E.D. Mich., Detention
Hearing Day 2 Tr., R.24, PageID 147. And the record
supports that finding. Wagner, among other things,
called for his followers to “f**king fight” ICE, “put[]
hands on” ICE, and “[g]et your f**king guns and stop
these f**king people.” E.D. Mich., Complaint, R.1,
PageID 23-24, 26. Wagner also called for his followers
to “hunt ice” and expressed frustration that they had
yet to “march on f**king Whipple with guns.” Id. at
PageID 8, 26.
3
See, e.g., id. at 953-54; United States v. Martinez-Torres, 181
F.3d 81, at *2 (1st Cir. 1998) (per curiam); United States v.
Torres, 2023 WL 7391694, at *3 (10th Cir. Nov. 8, 2023) (per
curiam); see also United States v. Muhtorov, 702 F. App’x 694,
696, 702 (10th Cir. 2017) (per curiam); United States v. Lucero,
2025 U.S. App. LEXIS 1662, at *2-3, 12 (10th Cir. Jan. 27, 2025).
17a
Now that Wagner’s threats have come under legal
scrutiny, he seeks to cast them as empty bravado. But
given Wagner’s assertions that he was “done with
peaceful protests now” and “not talking about peaceful
protests anymore,” several of Wagner’s posts can only
be understood as calls for violence. Id. at PageID 24,
26. Wagner’s followers understood them as such, with
one responding that it was time for federal agents to
meet an “AR15 and 9MM.” Id. at PageID 17. If
messages calling to “march on” a federal building
“with guns,” “put[] hands on” ICE, and “[g]et your
f**king guns and stop these f**king people” don’t
“promote[] physically assaulting and using weapons
against federal agents,” Dissenting Op. 31 (citation
omitted), it’s hard to imagine what words would. For
good reason, then, the district court accepted that
some of Wagner’s posts could be read as “actual
threats.” E.D. Mich., Detention Hearing Day 2 Tr.,
R.24, PageID 145.
Wagner cannot avoid consequences for those threats
by shifting the focus to times he chose more tempered
words. Cf. United States v. Martinez-Torres, 181 F.3d
81, at *2 (1st Cir. 1998) (per curiam). That is
especially so because Wagner’s threats had “escalated
in volume and violence” around the time of his arrest.
Lidderdale, 2025 U.S. App. LEXIS 33235, at *12
(quoting United States v. Gillenwater, 749 F.3d 1094,
1101 (9th Cir. 2014)). Even accepting that Wagner
himself did not present any “physically active”
concerns of danger, E.D. Mich., Detention Hearing
Day 2 Tr., R.24, PageID 146-47, that does not disprove
dangerousness. A defendant need not have “engaged
18a
in violence” to warrant detention. Stone, 608 F.3d at
947 n.6.
Nor does the record support efforts to brush away
Wagner’s private communications involving a request
to “kill” J.P. E.D. Mich., Detention Hearing Day 2 Tr.,
R.24, PageID 131. Wagner claims that “an undercover
federal agent” contacted Wagner about J.P. as part of
an “attempt[] to trick Wagner” into incriminating
himself. Wagner Br. 11. But Wagner provides no
evidence to support that claim. And even if true, it
does not help Wagner. Regardless of who contacted
him, Wagner does not dispute the allegations that he
agreed to pass along J.P.’s information to his “team”
so they could “assess the situation” and potentially
mete out “consequences.” E.D. Mich., Detention
Hearing Day 2 Tr., R.24, PageID 131-32. The dissent’s
assertion that Wagner was intending to “‘forward’”
J.P.’s “‘information’” to the “‘international criminal
court’” fares no better. Dissenting Op. 33 (quoting
E.D. Mich., Detention Hearing Day 2 Tr., R.24,
PageID 139). The proffered conversation shows that
Wagner entertained a request to help “kill” J.P., not
criminally refer him. E.D. Mich., Detention Hearing
Day 2 Tr., R.24, PageID 131.
Wagner’s counter that he lacked sufficient notice
that the Government intended to proffer the J.P.
conversation does not alter the district court’s decision
to admit that evidence into the record. “The
government may proceed in a detention hearing by
proffer.” United States v. Webb, 238 F.3d 426, at *2
(6th Cir. 2000); see also Stone, 608 F.3d at 948-49. And
“[t]he rules concerning admissibility of evidence in
criminal trials do not apply to the presentation and
19a
consideration of information at the [detention]
hearing.” 18 U.S.C. § 3142(f); see also United States v.
Wind, 527 F.2d 672, 675 (6th Cir. 1975). So the district
court did not err by allowing the Government to
introduce Wagner’s conversation about J.P.,
particularly since Wagner has not disputed the
accuracy of that information.
3. Nature and Seriousness of the Danger. Next, “the
nature and seriousness of the danger to any person or
the community that would be posed by [Wagner’s]
release” is significant. 18 U.S.C. § 3142(g)(4).
Internet-based threats like those Wagner is charged
with making pose well-documented harms. See United
States v. Wheeler, 776 F.3d 736, 745 n.4 (10th Cir.
2015); see also Elonis v. United States, 575 U.S. 723,
747-48 (2015) (Alito, J., concurring in part and
dissenting in part); Chief Justice John G. Roberts, Jr.,
2024 Year End Report on the Federal Judiciary 6-7
(2024) (discussing dangers of “dox[x]ing”). Wagner’s
“threatening statements regarding law enforcement
officers” are also strong evidence that he “would pose
a serious danger to the community if released”
pending trial. Stone, 608 F.3d at 953; see also United
States v. Davis, 2024 WL 3372682, at *2 (5th Cir. July
11, 2024) (per curiam). So are Wagner’s private
communications about J.P., which further indicate a
willingness to entertain targeted threats on specific
individuals.
Wagner disagrees. In doing so, he defends the
district court’s apparent attempt to draw equivalency
between Wagner’s threats and the actions of federal
law enforcement. Specifically, the district court
remarked during the detention hearing that
20a
“protection of the public” was “kind of like a two-way
street” that “depends on what side of the street you’re
on whether or not an individual might feel they are
protected or in need of protection.” E.D. Mich.,
Detention Hearing Day 2 Tr., R.24, PageID 147. Both
Wagner and the Government interpret that remark as
a “compar[ison]” between “Wagner’s actions in the
community to those of ICE.” Wagner Br. 21. In
context, it thus appears that the district court may
have discounted the dangerousness of Wagner’s
threats based on its view that ICE also threatened the
public. Any reasoning along those lines was error. The
Bail Reform Act focuses on the danger the defendant
poses to “any other person and the community.” 18
U.S.C. § 3142(e)(1). The district court’s views on the
Executive Branch’s immigration policy have no
bearing on that inquiry.
4. Defendant’s History and Characteristics. That
leaves Wagner’s history and characteristics. Those
“weigh[] slightly against dangerousness,” as Wagner
has no violent criminal history. Stone, 608 F.3d at 951.
But “a prior record of violence” is not “essential” to
proving that a defendant is dangerous for detention
purposes. Rodriguez, 950 F.2d at 89. So too, “a person
could be deemed a danger to the community sufficient
to justify detention even without posing a threat of
committing violence in the future.” United States v.
Hale-Cusanelli, 3 F.4th 449, 456 (D.C. Cir. 2021). And
for the reasons already discussed, the Government
“has met its burden” of “prov[ing] dangerousness by
clear and convincing evidence” despite Wagner’s lack
of a violent criminal history. Rodriguez, 950 F.2d at
89.
21a
C
We also agree with the Government that no
condition or combination of conditions will
“reasonably assure” the safety of J.S. and the
community. 18 U.S.C. § 3142(e)(1). In ordering
Wagner’s release, the district court concluded that the
various conditions it imposed—including GPS
monitoring, home detention, a third-party custodian
(Wagner’s mother), device restrictions, and a
prohibition on social-media posting—would mitigate
Wagner’s dangerousness. We see two principal defects
with that conclusion.
First, the conditions of release mostly “hinge on”
Wagner’s “good faith compliance.” United States v.
Tortora, 922 F.2d 880, 886 (1st Cir. 1990). That is
“particularly” true here, as the “crimes with which
[Wagner] is charged” are “not readily susceptible to
effective monitoring”
because
they “involve
communications” with others. United States v. Hir,
517 F.3d 1081, 1093 (9th Cir. 2008). Yet the record
evidence leaves little confidence that Wagner will
comply with the conditions of release.
Wagner’s actions around the time of his arrest
undercut his asserted promises to abide by the courtimposed conditions. Those actions include (1) flashing
two middle fingers to the camera during his booking
photo while stating “[t]his is for the judge,” (2)
“spit[ting] in the face” of the arresting agents, (3)
warning those agents not to “let [him] out” and that
he would “beat” them, and (4) seeking—and
obtaining—resources to “evade” federal law
enforcement. D. Minn., Detention Hearing Tr., R.13,
Page 21, 38; E.D. Mich., Complaint, R.1, PageID 13.
22a
Moreover, Wagner has failed to appear for state
criminal proceedings multiple times, was once
“[l]isted as an absconder” by a state court, and had an
active warrant for his arrest in Iowa at the time of his
detention hearing. E.D. Mich., Pretrial Services
Report, at 4-5. Wagner’s pattern of failing to appear
for prior judicial proceedings further “demonstrate[s]
a disregard for law enforcement and court-imposed
restrictions.” United States v. Moore, 2024 WL
3294950, at *2 (6th Cir. Apr. 17, 2024). All told, the
record evidence points toward “an unacceptably high
risk that” Wagner will disregard the conditions that
the district court found necessary to mitigate his
dangerousness. Hir, 517 F.3d at 1093.
Second, the online nature of Wagner’s conduct
further diminishes the effectiveness of the district
court’s conditions of release. Wagner could, for
example, “easily evade[]” the device-monitoring
requirement by accessing another device that is not
equipped with the monitoring software. Tortora, 922
F.2d at 887. Indeed, Wagner has already allegedly
evaded a social-media company’s limitations on
posting once before by creating and posting from a
new account. And the district court’s release order,
which authorizes Wagner to leave home confinement
for “employment,” “education,” and various other
reasons, E.D. Mich., Release Order, R.23, PageID 116,
would provide Wagner with ample opportunities to
“access the internet” via unmonitored devices, United
States v. Carpenter, 2023 U.S. App. LEXIS 2386, at
*7-8 (6th Cir. Jan. 30, 2023). Yet the district court
failed to address the Government’s argument that
internet-monitoring
conditions
are
easily
23a
circumvented or problematic given
particular history of internet activity.
Wagner’s
Similarly, the GPS-monitoring and home-detention
conditions “cannot be expected to prevent” Wagner
“from committing crimes or deter him from
participating in felonious activity within the
monitoring radius.” Tortora, 922 F.2d at 887. Neither
condition prevents Wagner from accessing the
internet and “committing further criminal conduct”
within the confines of his mother’s home “or inducing
others to act in his stead.” United States v. Espino,
2021 U.S. App. LEXIS 6755, at *5-6 (6th Cir. Mar. 8,
2021). Appointing Wagner’s mother as a third-party
custodian is no silver bullet, either. As Wagner’s
counsel stated, Wagner’s mother “doesn’t know
everything that her son does.” E.D. Mich., Detention
Hearing Day 2 Tr., R.24, PageID 141. And it’s
unreasonable to expect her to “monitor[]” Wagner’s
“compliance with conditions of bail twenty-four hours
a day, seven days a week.” United States v. Dono, 275
F. App’x 35, 37-38 (2d Cir. 2008).
Wagner and the dissent maintain that the district
court’s proposed conditions adequately address the
danger he poses. Wagner emphasizes that most of his
actions “were online,” which the district court
addressed by “imposing strict device restrictions” and
“social media restrictions.” Wagner Br. 21-22. And he
says he can only “get around” those restrictions by
“defeating Pretrial Services internet monitoring
software or colluding with his third-party custodian.”
Id. at 22.
That position overstates the effectiveness of the
district court’s proposed conditions and the difficulty
24a
of circumventing them. Examples highlighting the
failings of internet-access limitations abound in our
caselaw.4 And in the pretrial-release context, we have
explained that “the myriad of Internet-capable
devices, including those that work with data plans
rather than wifi access, render policing a defendant’s
Internet use almost impossible.” United States v.
Watt, 2024 U.S. App. LEXIS 13950, at *5 (6th Cir.
June 7, 2024) (cleaned up); see also United States v.
Orena, 986 F.2d 628, 632 (2d Cir. 1993) (“[E]lectronic
surveillance systems can be circumvented by the
wonders of science and of sophisticated electronic
technology,” and “monitoring equipment can be
rendered inoperative.” (citation omitted)). That
observation applies to Wagner, as the district court
allowed him continued internet access via two devices.
The dissent chalks up those internet-monitoring
decisions to “generalized concerns” driven by a
“statutory presumption in favor of detention” that
does not apply here. Dissenting Op. 41. And it
suggests that we are announcing a per se rule that
internet-monitoring conditions are insufficient. We
disagree on both fronts. To start, cases questioning
the efficacy of internet monitoring have focused
largely on the defendants’ conduct, not any detention
presumption. See, e.g., Watt, 2024 U.S. App. LEXIS
13950, at *2-5. Consistent with that approach, courts
4
See, e.g., United States v. Foster, 2020 WL 6791572, at *3 (6th
Cir. July 20, 2020); Carpenter, 2023 U.S. App. LEXIS 2386, at
*7-8; United States v. Hoilman, 2023 WL 4074630, at *2 (6th Cir.
Apr. 24, 2023); United States v. Watt, 2024 U.S. App. LEXIS
13950, at *4-5 (6th Cir. June 7, 2024); United States v. Gruber,
2024 WL 1366693, at *1-2 (6th Cir. Apr. 1, 2024).
25a
have
deemed
internet-monitoring
conditions
insufficient even without the statutory presumption,
including in interstate-threats and cyberstalking
prosecutions.5 In addition, it is Wagner’s own conduct,
not “generalized concerns” about internet offenses,
that undercut the efficacy of the district court’s
conditions. Dissenting Op. 41. Concluding that those
conditions are insufficient here does not mean they
would fall short in different cases presenting different
facts.
Wagner also fails to adequately address the fact that
the conditions’ effectiveness depends upon his
voluntary compliance. He points to his actions during
the week-long period when the district court’s release
order was in effect. But that minimal compliance,
when Wagner was under a microscope, does not
outweigh the other record evidence suggesting that
Wagner “is very unlikely to abide by any conditions of
his release for an extended period of time,
notwithstanding” any “successful furlough.” Moore,
2024 WL 3294950, at *2.
Faced with those realities, Wagner’s “bald assertion
that he is unlikely to engage in further” problematic
behavior if released on the district court’s conditions
“does not overcome the weight” of the countervailing
factors. United States v. Brock, 2025 U.S. App. LEXIS
7320, at *6 (6th Cir. Mar. 28, 2025). After all, “nothing
in the Bail Reform Act” requires “dangerous
5
See, e.g., United States v. Comberger, 2021 WL 1725516, at *6
(E.D. Ky. Apr. 30, 2021); United States v. Waldman, 2018 U.S.
Dist. LEXIS 98548, at *12-13 (S.D.N.Y. June 12, 2018); United
States v. Dai, 2023 U.S. Dist. LEXIS 237124, at *26-27 (N.D.N.Y.
Dec. 19, 2023).
26a
defendants to be at large based upon their promise not
to violate conditions of bail.” Orena, 986 F.2d at 633.
Ultimately, the Government has proven Wagner’s
dangerousness by clear and convincing evidence. And
on this record, we conclude that no condition or
combination of conditions will mitigate the relevant
risks. The Bail Reform Act therefore requires that
Wagner remain detained pretrial. See 18 U.S.C. §
3142(e)(1).
***
We reverse the district court’s release order.
27a
___________________
DISSENT
___________________
BLOOMEKATZ, Circuit Judge, dissenting. In
December 2025, the Department of Homeland
Security launched Operation Metro Surge, a mass
immigration enforcement effort that deployed
thousands of federal agents to Minnesota and
triggered widespread protests. Kyle Wagner, a
Minneapolis native, was a vocal opponent of
Immigration and Customs Enforcement agents
throughout the operation. He regularly posted on
social media, sometimes multiple times a day, to
denounce ICE agents and to call for his followers to
resist ICE. Wagner also criticized ICE supporters,
and, in one Instagram post, shared the purported
personal information and address of a pro-ICE online
influencer. Based on this single post, the government
charged Wagner with cyberstalking and transmitting
interstate threats, and then it moved for his pretrial
detention. The district court found that it could
reasonably protect against any risk of danger or
nonappearance that Wagner posed by imposing
numerous restrictive pretrial release conditions, so it
ordered his release.
The government appeals the district court’s order
denying pretrial detention and releasing Wagner
subject to these comprehensive conditions. The
government seldom appeals pretrial release orders, so
why is it insistent here? Wagner, who identifies as
“antifa” (anti-fascist) and has large tattoos on his face,
neck, and chest, looks aggressive in his social media
28a
videos, so it is no surprise that the White House Press
Secretary held up a photo from one of his videos while
touting law enforcement efforts against “left-wing
agitators.” See Steve Karnowski, Minneapolis Man
Accused of Cyberstalking, Threatening ICE Supporter
amid Crackdown in Minnesota, Associated Press
(Feb. 10, 2026, at 16:33 ET), https://perma.cc/3H3PHUW8. But Wagner has never committed a violent
crime. He does not own a gun and has disavowed
owning one. And there is no evidence in the record
that he has ever assaulted or otherwise physically
harmed anyone, save for spitting towards agents
during his arrest.
Instead, as the government admits, Wagner’s
purported dangerousness is based almost entirely on
his online speech—namely, his anti-ICE posts. His
commentary is no doubt fiery and aggressive, but it is
also clearly full of bravado and rhetoric. And the
government does not point to a single harmful action
his speech has incited. Yet, because of his speech, the
government says—and the majority agrees—Wagner
poses a danger to the public that no conditions of
release can address, so he must be incarcerated
awaiting trial.
I disagree. On this record, the government has not
provided “clear and convincing evidence” that Wagner
is so dangerous, or proven by a preponderance of the
evidence that he is at such a risk of absconding, that
no set of release conditions “will reasonably assure”
the community’s safety and his appearance. 18 U.S.C.
§ 3142(e), (f)(2). Not only does the government
overstate the evidence of dangerousness, but in my
view, the government has not provided a convincing
29a
reason to overturn the district court’s conclusion that
the stringent conditions of Wagner’s release—
including no social media access, no communication
with anti-ICE organizers, GPS monitoring, home
confinement in the presence of a custodian, and
electronic surveillance on all his devices—are
sufficient to protect the public and assure his
appearance.
Because I would defer to the district court’s
judgment that the pretrial release conditions will
reasonably assure Wagner’s appearance and protect
community safety, I would affirm the district court’s
pretrial release order. Accordingly, I respectfully
dissent.
BACKGROUND
I.
Factual Background
The charges in this case stem from one Instagram
post Wagner made in late January 2026, but many of
his other social media posts and messages are
relevant to the question of pretrial detention.
Therefore, I begin with the context for Wagner’s social
media posts and survey their content, then detail the
single Instagram post that is the basis of his charges
in this case.
A.
Wagner’s Social Media History
Wagner’s charged conduct took place during a
particularly fraught political moment in Minnesota.
In December 2025, DHS launched Operation Metro
Surge and deployed thousands of federal agents to
Minneapolis and St. Paul for an immigration
enforcement effort.
30a
By February 2026, DHS reported over 3,000 arrests
of noncitizens from the operation. State and local
governments in Minnesota sued the federal
government, seeking the end of the operation on the
grounds that it was both unconstitutional and
unlawful. Minnesota ex rel. Ellison v. Noem, 818 F.
Supp. 3d 1030, 1035 (D. Minn. 2026). At the same
time, many Minnesotans engaged in “large-scale
protests” against the operation as well as “ad hoc”
interference with immigration enforcement attempts.
Id. at 1036, 1038. Also during the surge, federal law
enforcement officers shot and killed two American
citizens, Renée Good and Alex Pretti, sparking
additional protests.
During Operation Metro Surge, law enforcement
officers began reviewing Wagner’s posts on Facebook
and Instagram. Wagner is a Minneapolis resident who
was vocal in his opposition to ICE’s presence in the
city and its actions during the surge. Officers
cataloged Wagner’s social media posts from January
8, the day after the shooting of Renée Good, until his
arrest on February 3. After his arrest, officers also
reviewed some of Wagner’s Signal messages. Because
the content of these posts and messages is relevant to
the pretrial detention analysis, I survey it here. As
this review illustrates, Wagner’s posts contained fiery
anti-ICE rhetoric that was generally, though not
uniformly, tempered by references to nonviolence or
self-defense.
On January 9, Wagner posted a video referencing
the “constant harassment” of ICE’s temporary
residences in Minneapolis and said, “Anywhere we
have an opportunity to get our hands on them, we
31a
need to put our hands on them.” Compl., R. 1, PageID
6-7. In the same video, he stated that Minnesota
would be the first state to “stand its f------ ground.” Id.
at PageID 7. In another post that day, Wagner
expanded on his proposed protest approach by
writing, “Wherever ICE is Be there with them - make
it known - do not attack them - do not let them attack
You.” Id. at PageID 8. And Wagner called for a
“national Investigation” of ICE, the “national guard
[to] be deployed to detain and dissarm [sic] ice,” and
the “[a]rrest” of ICE. Id. That same day, Wagner
posted a video with a caption saying, “Our goal is to
unmask and identify ice agents - stop their ability to
arrest individuals through group resistance. We do
not shoot first - if they pull the trigger - defend
yourself.” Id. at PageID 10.
Wagner continued to call for direct nonviolent
resistance to ICE and noted that he himself did not
own any weapons. On January 10, Wagner posted a
video stating that protesters should “[g]et out on the
streets. Have some f------ fun. Keep your heads. We’re
not the violent ones. Go take their f------ masks off and
take their f------ guns.” Id. at PageID 11. On January
12, Wagner stated, “I am unarmed - my only weapon
is my fists and my voice.” Id. at PageID 14-15. He
explained in another post, “I disarmed myself in 2022
during the aftermath of George Floyd . . . I chose to
surrender the few hunting rifles I had to my dad - and
have since been unarmed.” Id. at PageID 19.
On January 13, Wagner posted a video, reiterating
that Minneapolis was “under occupation” and was
“fighting back with every tool we have at our
disposal.” Id. at PageID 16. Referring to ICE agents,
32a
he explained, “We want to know who they are. We will
identify every single one of them and we will prosecute
them to the fullest extent of the law. If that has to be
done at the barrel of a gun, then let us have a little f----- fun.” Id. at PageID 17. He also said, “This is where
ice has come to to die.” Id. at PageID 16. He later
explained that statement meant “the organization - I
mean the concept itself - the functional mechanism of
‘Immegration [sic] Control and Enforcement’ I mean
that the ideology of the institution came to these
streets to bleed out and go away forever...” Id. at
PageID 20.
On January 24, two Customs and Border Protection
officers shot and killed Alex Pretti, a longtime
acquaintance of Wagner’s, in Minneapolis. Wagner
posted a video encouraging “every armed American
that’s within a reasonable distance of [the location of
the shooting] to come and stand” and said that he had
“gas masks on the ground there.” Id. at PageID 24.
Wagner stated, “If you’re seeing this video, we’re done
with peaceful protests now. The gloves come off and
ICE needs to get out. Run for the hills, boys.” Id. at
PageID 24. Later that day, Wagner lamented that the
killing was “exactly what [he] said was going to f-----come when we didn’t f------ go and march on f-----Whipple with guns.” Id. at PageID 26. He also
reiterated his previous message and said, “Sorry but
welcome to America 2026 where the Second
Amendment is the only thing that’s going to keep you
f------ protected from literal f------ Nazi gun men that
are killing innocent people in the street with
impunity. This is not a f------ joke. There’s nothing fun
33a
to chant about it. Get your f------ guns and stop these
f------ people.” Id.
After Instagram banned Wagner’s account, he
posted from a new account to celebrate the
withdrawal of ICE agents and leaders from the Twin
Cities. He said, “The fight is well and alive. We have
pushed ICE to leave this city in droves. We have made
our voices heard. Viva la resistance.” Id. at PageID 27.
That same day, he posted a video distributing gas
masks and shields with the caption “power to the
people.” Id. at PageID 28. The next day, Wagner
celebrated, “Got rid of Bovino yesterday. Also sent a
lot of ICE agents packing. It’s working people. The
pressure is getting results.” Id. at PageID 29. (Two
days later, Wagner made the post about J.S. that is
the basis for this prosecution and is detailed below.)
Shortly before his arrest, Wagner exchanged Signal
messages with an unnamed person about J.P., a
former government official on the Epstein “list.” Mar.
25 Hr’g Tr., R. 24, PageID 131. The person said he had
the “address, phone and E-mail” for J.P. and wanted
to “kill” him. Id. He asked Wagner for “help” and if he
knew “anyone who would want this info to bring to
justice.” Id. Wagner responded, “Okay. Well, we do
stuff, me and my family of friends. We like to know
about people who deserve consequences. So if you send
me credible verifiable information it will go to people
who can.” Id. After the person identified J.P., Wagner
said, “For now I just need a name and the contact info
and verification you are a credible source for this info
so I can put it in the hands of my team and assess the
situation for your security, ours, and understand what
we have to work with, okay.” Id. at PageID 132. The
34a
person then sent Wagner J.P.’s driver’s license, phone
number, address, and e-mail. Wagner’s attorney later
stated that Wagner was “attempting to forward
information about people who were in the Epstein
files to the international criminal court” and that he
entertained the messages to “help turn [J.P.] over to
the authorities.” Id. at PageID 139. In a separate
Signal exchange with a different individual, Wagner
sent the result from an online search for a journalist,
showing a current address and phone numbers, to the
individual with the message, “I may have found where
he’s hiding.” Id. at 135. There is no additional context
about these Signal exchanges, so other than the vague
messages themselves, there is no evidence in the
record about what, if anything, Wagner did with the
information.
B.
January 29 Instagram Post
In this case, Wagner is not facing charges for any of
the posts or messages described above. His January
29 Instagram post is the only one the government has
indicted him for here. In that post, Wagner allegedly
doxxed J.S., a pro-ICE online influencer, by posting
his full name, phone number, birth month and year,
and address on Instagram. In the same post, Wagner
wrote, “Awe bb nazi boy” and “we can all knock on
strangers doors . . . See you soon kiddo - stay safe out
here.” Compl., R. 1, PageID 30.
Some context is helpful for understanding Wagner’s
post. The government describes J.S. as “a pro-ICE
individual,” Id. at PageID 5, and Wagner elaborates
on this description by explaining that J.S. is a vocal
right-wing influencer. During Operation Metro Surge,
J.S. posted a video of himself knocking on the door of
35a
a Minnesota journalist covering anti-ICE protests.
Wagner contends that his statement “we can all knock
on strangers doors” was a response to J.S.’s own post.
Wagner further proffers that he reposted publicly
available information from someone else’s previous
post about J.S. and that none of the information he
posted was accurate. In response to Wagner’s post,
J.S. challenged him to a boxing match. Wagner
accepted, and the two influencers posted about their
plans to box each other.
Five days after the alleged doxxing, the government
filed a criminal complaint in the Eastern District of
Michigan, charging Wagner with one count of
cyberstalking and one count of transmitting interstate
threats based on the January 29 post. See 18 U.S.C.
§§ 2261A(2) (cyberstalking), 875(c) (interstate
threats).
II.
Procedural History
After filing the complaint, the government arrested
Wagner at his residence in Minnesota. Wagner
allegedly resisted arrest and spit in the officers’
direction. In his booking photo, Wagner held up two
middle fingers and said, “This is for the judge.” Gov.
Resp. to Mot., R. 21, PageID 91.
Wagner appeared before a magistrate judge in the
District of Minnesota for removal proceedings to the
Eastern District of Michigan. Against his appointed
counsel’s advice, Wagner chose to proceed with the
detention hearing at the same time as the removal
proceedings, rather than ask for a continuance.
Because of Wagner’s choice, his counsel had only
briefly interviewed him to prepare for the hearing and
had not reviewed his social media posts or the footage
36a
of his arrest before the government presented them.
Likewise, Pretrial Services did not have time to
conduct a thorough investigation, interview potential
third-party custodians, or draft a report. It orally
recommended detention. After hearing from the
parties, the magistrate judge ordered Wagner
detained. The magistrate judge stated that detention
would be “perhaps, a closer question” if Wagner was
facing charges in the District of Minnesota, but he did
not think he could impose conditions that would
reasonably assure Wagner’s appearance and
community safety. Feb. 5 Hr’g Tr., R. 13, at Page 5152. The magistrate judge later clarified that he
ordered Wagner detained “for one reason and one
reason only,” his “concern that Mr. Wagner may not
have the ability, candidly, to get to Michigan to make
the court appearance.” United States v. Isaac Sant,
No. 26-cr-115, Arraignment Tr., R. 184, 23.
After his removal to the Eastern District of
Michigan, a grand jury indicted Wagner for
cyberstalking and transmitting interstate threats.
Wagner then appealed his detention order to the
district court. In advance of the detention hearing,
Pretrial Services for the Eastern District of Michigan
interviewed Wagner, spoke to his mother, and
ultimately issued a report recommending his release
under suitable conditions. The district court reviewed
the Pretrial Services Report from the District of
Minnesota (drafted after the first detention hearing)
as well as the “more extensive” Pretrial Services
Report from the Eastern District of Michigan. Mar. 24
Hr’g Tr., R. 27, PageID 171. Over the course of two
days, the district court also heard proffers from the
37a
parties and argument on the pretrial detention
factors.
Reviewing the evidence de novo, the district court
ordered Wagner released with both standard and
special conditions of release. The
district
court
adopted the conditions recommended by Pretrial
Services, including home detention, GPS monitoring,
and restricted and monitored access to the internet
through one approved computer and one phone. The
district court also adopted conditions that Wagner
had proposed—appointment of his mother as thirdparty custodian and prohibitions on posting to social
media, participating in anti-ICE protests, or entering
Minneapolis or St. Paul. And it imposed additional
conditions sua sponte, including a prohibition on
engaging in any assaultive, threatening, or harassing
behavior or statements. At the end of the hearing, the
district court warned Wagner that both the court and
Pretrial Services took their jobs “very seriously” and
would carefully monitor and enforce his compliance
with the conditions. Mar. 25 Hr’g Tr., R. 24, PageID
156.
The government appealed the district court’s release
order and moved for an emergency stay pending
appeal. This court granted the emergency motion for
a stay pending appeal. Wagner, who had been on
pretrial release at the home of his third-party
custodian for one week, received permission to turn
himself in and did so the next morning.1
1
After Wagner was detained, he was indicted in the District of
Minnesota, along with fourteen others, for conspiracy to impede
or injure a federal officer, solicitation to commit a crime of
violence, and transmitting interstate threats. Our review is
38a
ANALYSIS
The Bail Reform Act of 1984 reflects the
constitutional principle that “[i]n our society liberty is
the norm, and detention prior to trial or without trial
is the carefully limited exception.” United States v.
Salerno, 481 U.S. 739, 755 (1987). In recognition of the
defendant’s “presumption of innocence,” 18 U.S.C. §
3142(j), the statute’s “default position” is that “a
defendant should be released pending trial.” United
States v. Stone, 608 F.3d 939, 945 (6th Cir. 2010).
Accordingly, the statute permits pretrial detention
only if “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)(1). To determine
whether there are conditions of release that can
reasonably protect against risk of flight and
dangerousness, the court must consider (1) the nature
and circumstances of the offense charged, (2) the
weight of the evidence against the defendant, (3) the
history and characteristics of the defendant, and (4)
the nature and seriousness of the danger posed by the
defendant’s release. Id. § 3142(g). To justify pretrial
detention, the government must prove by “clear and
convincing evidence” that no conditions “will
reasonably assure the safety of any other person and
the community.” Id. § 3142(f)(2). Alternatively, the
government must prove by a preponderance of the
evidence that no conditions will reasonably assure the
limited to this case, so I do not consider the second indictment.
But I note that none of Wagner’s codefendants in that case have
been detained pretrial.
39a
defendant’s appearance in court as required. United
States v. Hinton, 113 F. App’x 76, 77 (6th Cir. 2004).
Here, the government challenges the district court’s
determination that the conditions of release it
imposed would reasonably assure the safety of the
community and Wagner’s appearance in court. The
government contends that it has met its burden to
prove Wagner’s dangerousness and risk of
nonappearance, and it argues that no conditions of
release could avoid these risks. Because I disagree
with the government’s assessment of dangerousness,
the risk of nonappearance, and the efficacy of the
pretrial release conditions, I would affirm the district
court’s release order and conditions of release.
I.
Standard of Review
Before turning to the merits, I address our standard
for reviewing pretrial detention orders and highlight
an unresolved question in our precedents. Our court
has never clearly resolved the question of the
appropriate standard of review. And our sister circuits
have split on the issue. See Jefri Wood, The Bail
Reform Act of 1984 § VII (Fed. Jud. Ctr. 4th ed. 2022).
In reviewing district court determinations about
pretrial detention, we must review factual findings,
legal questions, and so-called mixed questions of law
and fact that ask whether the factual findings meet
the legal standard to justify detention. The district
court’s factual findings are reviewable only for clear
error. See U.S. Bank Nat’l Ass’n ex rel. CWCapital
Asset Mgmt. LLC v. Vill. at Lakeridge, LLC, 583 U.S.
387, 394 (2018). And its legal conclusions are reviewed
de novo. Id. at 393. The appropriate standard of
40a
review for the mixed questions, however, is a more
complicated question.
Not all mixed questions receive de novo review. Id.
at 395-96. Instead, the Supreme Court has explained
that the proper standard for a mixed question may
turn on a determination that “one judicial actor is
better positioned than another to decide the issue in
question.” Miller v. Fenton, 474 U.S. 104, 114 (1985);
see also U.S. Bank, 583 U.S. at 395-56. Here, the
district court is better positioned than our court to
resolve the question of whether any condition or
combination of conditions will reasonably assure the
defendant’s appearance and the safety of the
community. District courts handle pretrial detention
issues routinely, but we seldom see them. So, in my
view, we should apply a deferential review to the
district court’s judgment.
Appellate courts apply deferential review to mixed
questions in other analogous areas. In the context of
criminal sentencing, for example, the Supreme Court
has applied a deferential standard of review to the
district court’s application of a Sentencing Guidelines
term because of “the relative institutional advantages
enjoyed by the district court in making the type of
determination at issue.” Buford v. United States, 532
U.S. 59, 64 (2001). We are similarly deferential when
the application of a sentencing enhancement involves
a fact-intensive question that the district court is
better positioned to answer. See, e.g., United States v.
Washington, 715 F.3d 975, 983 (6th Cir. 2013). The
district court’s same institutional advantages are
involved in a pretrial detention decision. A “district
judge sees many more [pretrial detention orders] than
41a
does an appellate judge,” and this “[e]xperience” helps
the district court make its decisions. Buford, 532 U.S.
at 64. Further, in reaching its decision, “factual
nuance may closely guide the legal decision, with legal
results depending heavily upon an understanding of
the significance of case-specific details.” Id. at 65. And
the fact-bound nature of any pretrial detention
decision may “limit[] the value of appellate court
precedent.” Id. at 66.
Outside of sentencing, the Supreme Court has
likewise reiterated that not all mixed questions of law
and fact warrant de novo review. See U.S. Bank, 583
U.S. at 396. The Court explained that “appellate
courts should usually review a decision with
deference” when it “immerse[s] courts in case-specific
factual issues.” Id. After all, appellate courts are not
in the best position to “marshal and weigh evidence,
make
credibility
judgments”
and
address
“multifarious, fleeting, special, narrow facts that
utterly resist generalization.” Id. (citation omitted).
Determining whether a defendant should be detained
pretrial requires the district court to “take[] a raft of
case-specific historical facts, consider[] them as a
whole, balance[] them one against another—all to
make a determination” whether conditions of release
can reasonably assure the defendant’s appearance
and the safety of the community. Id. at 397. Under the
Court’s reasoning, pretrial detention appears to be the
type of fact-intensive mixed question that warrants
deferential review. See id. at 399. Therefore, in my
view, both the institutional advantages of the district
court and the fact-intensive nature of the question call
42a
for the application of deferential review to mixed
questions in district court pretrial detention decisions.
True, our decision in United States v. Hazime stated
that de novo review applies to these mixed questions
in the pretrial context. 762 F.2d 34, 37 (6th Cir. 1985).
But this standard-of-review question was not at issue
in Hazime, nor was it part of the reasoning leading to
the court’s holding or decision to remand. See Wright
v. Spaulding, 939 F.3d 695, 701-02 (6th Cir. 2019). In
Hazime, the parties disputed the scope of our review
for factual questions in pretrial detention appeals.
Our court rejected the position that it had a “nondelegable responsibility to make an independent
determination of the merits of the bail application”
and held that it would review the factual findings of
the district court for clear error. Hazime, 762 F.2d at
36. The court then stated, without elaboration or
citation to any precedent, that its “standard in
reviewing mixed questions of law and fact and the
legal conclusions of the District Court, however,
remains that of de novo consideration.” Id. at 37. And
the court did not review the district court’s detention
order under either standard because it remanded for
the district court to “clarify” a threshold question
about whether it treated the statutory presumption of
flight “as burden shifting or evidentiary” and whether
the presumption was constitutional. Id. Thus, the
standard of review for mixed questions did not
“contribute to the judgment.” Wright, 939 F.3d at 701.
And the fact that later decisions have cited Hazime for
the standard of review, see, e.g., Stone, 608 F.3d at
945, does not transform it into a reasoned judgment
43a
addressing the issue, see United States v. Dixon, 509
U.S. 688, 706 (1993).
Adherence to this nonbinding language in Hazime is
even more concerning given that its unsupported and
blanket assertion that de novo review applies to mixed
questions is inconsistent with Supreme Court
precedents, explained above, declaring that mixed
questions are not all alike. It is also inconsistent with
our court’s practice of re-examining standards of
review on mixed questions based on those Supreme
Court precedents. For example, we long reviewed de
novo all mixed questions implicated in sentencing, but
we “pivoted from de novo” to deferential review in
some circumstances and held that the appropriate
standard of review must be decided on a “guidelineby-guideline” basis. United States v. Merritt, 102
F.4th 375, 379-80 (6th Cir. 2024). Outside of the
sentencing context too, we now take a “case-by-case
approach” to the standard of review for all mixed
questions of law and fact rather than applying a
blanket rule of de novo review. New London Tobacco
Mkt., Inc. v. Ky. Fuel Corp., 44 F.4th 393, 407 (6th Cir.
2022) (quotation omitted). Accordingly, I disagree
with the majority that Hazime controls the standard
of review for mixed questions in these appeals.
With humility to the district court’s superior
expertise in these cases, I would review the district
court’s application of the facts to the pretrial detention
standard with “due deference.” United States v.
Shanklin, 924 F.3d 905, 919 (6th Cir. 2019).
II.
Dangerousness and Flight Risk
Turning to the merits with this deferential
approach, I would hold that the government has not
44a
met its burden to show by clear and convincing
evidence that no set of pretrial release conditions can
protect public safety or by a preponderance of the
evidence that no set of conditions can assure his
appearance in court. Before considering the specific
pretrial release conditions the district court
imposed—and whether they can mitigate the
government’s concerns—I review the government’s
claims about Wagner’s dangerousness and risk of
nonappearance.
A.
Nature and Circumstances of Charged
Offenses
Under the first statutory factor, we must look at
both the “nature” and “circumstances” of Wagner’s
charged offenses. “The distinction between ‘nature’
and ‘circumstances’ clarifies that the former refers to
the generic offense while the latter encompasses the
manner in which the defendant committed it.” United
States v. Singleton, 182 F.3d 7, 12 (D.C. Cir. 1999).
Therefore, the Bail Reform Act directs the court to
look at both the labels and the specific facts
underlying Wagner’s indictment. At the same time,
the Act cautions that “[n]othing in this section shall
be construed as modifying or limiting the presumption
of innocence.” 18 U.S.C. § 3142(j).
Beginning with the nature of the charged offenses,
Wagner was indicted for cyberstalking and interstate
threats. Id. §§ 2261A(2), 875(c). The district court
described the offenses as “serious” but recognized that
the seriousness of such acts could vary from “bullying”
among young students to “serious crimes, including
up to physically harming people in Federal Court.”
Mar. 25 Hr’g Tr., R. 24, PageID 149-50. Like the
45a
district court, I affirm that both charged offenses are
serious and that transmitting interstate threats is a
crime of violence because it involves violent threats.
18 U.S.C. § 3142(g)(1); see United States v. Pietila, No.
1:23-cr-78, 2023 U.S. Dist. LEXIS 114354, at *3-4
(W.D. Mich. July 3, 2023). But I further agree with the
district court that the seriousness of the offenses
varies significantly and requires looking at the
specific allegations of how the charged offense was
committed.
Turning to the circumstances of the charged
offenses, the government explains that Wagner made
an Instagram post sharing “what he believed was
J.S.’s birth month and year, phone number, and
parents’ home address” along with the message “Awe
bb nazi boy . . . we can all knock on strangers doors . .
. See you soon kiddo - stay safe out here.” Gov’t Br. at
9. Wagner expands on this allegation by proffering
that (1) he reposted information that was already
publicly available from an earlier attempted doxxing
of J.S., (2) none of the personal information he posted
was accurate, and (3) J.S. responded to the post by
challenging Wagner to a boxing match, which Wagner
accepted, showing that Wagner’s post did not create
any new or real danger to J.S. Wagner also explains
that the message about “knock[ing] on strangers
doors” was a reference to J.S.’s own post from outside
the apartment of a Minnesota journalist. Therefore,
the circumstances of Wagner’s offense, a back and
forth between online personalities, do not indicate
that he was likely to endanger J.S.
Our other cases regarding pretrial defendants facing
these charges confirm that the circumstances of
46a
Wagner’s conduct do not militate strongly in favor of
detention. In United States v. Lidderdale, for example,
the defendant’s severe, repeated, and graphic threats
much more clearly supported a finding of
dangerousness. No. 25-3663, 2025 U.S. App. LEXIS
33235, at *1-2 (6th Cir. Dec. 18, 2025). The
government alleged that the defendant “sent dozens
of threats, in letters and emails” containing “graphic
threats, suggesting that the recipients (and
sometimes their family members) would be killed
‘from a bullet fired by my gun penetrating your skull
with little warning’ or that [e]ach [victim] will receive
the gift of their names etched onto a single bullet.
Their skull is the target the bullet is the gift.’” Id.
Along with the written threats, he allegedly sent an
“inscribed bullet to one recipient and a white powder”
to others, and the recipients were “traumatized” by
the messages. Id. at *2-3. Wagner’s single post of
publicly
available
and
inaccurate
personal
information is not comparable to that threatening
course of conduct.
Accordingly, I recognize that the nature of Wagner’s
charged offenses is serious, but I believe that the
circumstances of Wagner’s post, which appear to be a
war of words between online personalities, weigh only
slightly in favor of a finding of dangerousness. I also
do not think the nature and circumstances of the
charged offenses establish a risk of nonappearance.
B.
Weight of the Evidence
Next, I look to the “weight of the evidence against”
Wagner. 18 U.S.C. § 3142(g)(2). In our circuit, this
factor looks at the weight of the evidence of
dangerousness or risk of nonappearance, “not the
47a
weight of the evidence of the defendant’s guilt.” Stone,
608 F.3d at 948.2
As to Wagner’s dangerousness, the government
relies on Wagner’s social media posts and Signal
messages. The government does not argue that
Wagner himself engaged in violence or even that his
posts incited actual violence. Instead, the government
contends that Wagner’s posts constitute calls for his
followers to engage in violence against ICE and ICE
supporters.
Although I do not condone Wagner’s rhetoric, I
would defer to the district court’s assessment of
Wagner’s dangerousness and judgment that any
concerns about public safety can be ameliorated
through conditions of release. As to the dangerousness
of Wagner’s posts, the record does not contain the full
posts, so there is limited context for many of his
statements. But even this limited context paints a
more nuanced picture than the government’s position
that Wagner “promoted physically assaulting and
using weapons against federal agents.” Gov’t Br. at
22.
2
Many of our sister circuits treat this factor as looking to the
weight of the evidence of the defendant’s guilt. See, e.g., United
States v. Patriarca, 948 F.2d 789, 792 (1st Cir. 1991); United
States v. Traitz, 807 F.2d 322, 324 (3d Cir. 1986); United States
v. Jackson, 845 F.2d 1262, 1265 (5th Cir. 1988); United States. v.
Apker, 964 F.2d 742, 744 (8th Cir. 1992) (per curiam); United
States v. Cisneros, 328 F.3d 610, 618 (10th Cir. 2003). Because
we instead look to the weight of evidence of dangerousness or
nonappearance risk, there is a great deal of overlap between our
analysis under this factor and the subsequent ones.
48a
Read in context rather than as isolated snippets,
Wagner’s posts do not reflect the dangerousness that
the government argues they do. For example, the
government points to Wagner’s statement “fight ice.
This is kill or be killed.” But earlier in that post, which
Wagner made two days after the shooting of Renée
Good, he called for the National Guard to disarm ICE
and for ICE to be arrested. Compl., R. 1, PageID 8-9.
He also said in the same post that “Wherever ICE is
Be there with them - make it known - do not attack
them - do not let them attack You” and “if they aggress
- we meet them where they move - let them exhaust
themselves.” Id. at PageID 8. The government also
isolates Wagner’s statement from earlier that same
day, “Anywhere we have an opportunity to get our
hands on them, we need to put our hands on them,”
but Wagner went on to say that Minnesota would
“stand its f------ ground” against ICE—a defensive
position. Id. at PageID 6-7. And Wagner’s other post
that day said “stand your ground - if you’re armed declare it” and “We do not shoot first - if they pull the
trigger - defend yourself” Id. at PageID 10.
Many of the other statements the government cites
also read differently when placed in context. The
government quotes Wagner as stating, “This is where
ICE has come to die,” but he clarified that the
statement referred to “the ideology of the institution”
which “came to these streets to bleed out and go away
forever,” not to the death of any ICE agent. Id. at
PageID 16, 20. The government also quotes Wagner’s
words, “hunt ice,” but immediately after that
statement, he said, “vehicles can be sacrificed - disable
their vehicles.” Id. at PageID 8. Read in context,
49a
Wagner’s reference to “hunt[ing] ice” was not
advocating for violence against ICE agents but was
instead focused on immobilizing their vehicles. In
another post, Wagner acknowledged that ICE had
“increased the severity of their tactics in an attempt
to scare [protesters] into submission,” but he said that
despite those tactics, “We will identify every single
one of them and we will prosecute them to the fullest
extent of the law.” Id. at PageID 16-17. Wagner then
stated, “If that has to be done at the barrel of a gun,
then
let
us
have
a
little
f------ fun,” showing that he continued to advocate for
the public to identify ICE agents and prosecute them
in court, even if they were threatened at the “barrel of
a gun.” Id. at PageID 16-17. But, again, that does not
mean he is advocating for protesters to use violence
offensively. By taking snippets of his posts out of
context, they appear more violent than they are. And
some of Wagner’s other statements, which the
government does not cite, emphasized nonviolence or
self-defense tactics: “Keep your heads. We’re not the
violent ones.” and “We do not shoot first - if they pull
the trigger - defend yourself.” Id. at PageID 10-11.
Arguably, Wagner’s most threatening statements
came on January 24, the day that government officers
shot and killed Pretti, one of his longtime
acquaintances. Wagner railed against the shooting,
which he viewed as the inevitable consequence of
ICE’s presence and tactics in the city, saying, “This is
exactly what I said was going to happen. This is
exactly what I said was going to f------ come when we
didn’t f------ go and march on f------ Whipple with
guns.” Id. at PageID 26. He repeatedly said that he
50a
was “done with peaceful protests” and “not talking
about peaceful protests anymore,” reflecting a shift
from his earlier posts. Id. at PageID 23-26. After the
shooting, Wagner said that protesters’ options were
“Go and f------ fight them. Or shut the f------ up and die
for them,” complained that some people “want to f----- talk about their f------ feelings instead of putting
hands on these murderers,” and told his followers,
“Get your f------ guns and stop these f------ people.” Id.
at 23-24, 26. While the January 24 posts reflect a
change in tone, I agree with the district court that
even these words “could be viewed in more than one
way”—they could be read as “actual threats” or,
alternatively, as not “as specific a threat” but instead
a reflection of Wagner’s belief that ICE agents would
continue to kill protesters unless they defended
themselves, if necessary with force. Mar. 25 Hr’g Tr.,
R. 24, PageID 145.
It is notable that, even on January 24, Wagner never
expressed any threat or intent to engage in any
violence himself. During the protests after Pretti’s
death, Wagner delivered gas masks to protesters and
wore a bulletproof vest, but both gas masks and
bulletproof vests are defensive and a reflection of his
view that protesters would need to protect themselves
from officers’ use of force. Wagner also repeatedly
stated in his earlier posts that he did not own a gun.
Further, the government does not argue that
Wagner’s posts incited any violence on January 24 or
otherwise. And while the government contends that
Wagner’s posts escalated over time, his posts in the
days after Pretti’s death celebrated the withdrawal of
ICE agents from Minneapolis. If his January 24 posts
51a
are read as escalating rhetoric, his January 26 and 27
posts can be read as de-escalating.
Outside of Wagner’s social media posts, the
government cites to his Signal messages with another
user who expressed a desire to kill J.P., a former
government official mentioned in the Epstein “list.” It
is true that Wagner responded to the messages by
requesting “credible verifiable information” that he
could send to his team, but nowhere in the exchange
did Wagner agree to assist in any criminal activity.
Mar. 25 Hr’g Tr., R. 24, PageID 131. Wagner proffered
that he was “attempting to forward information about
people who were in the Epstein files to the
international criminal court” and that he entertained
the messages to “help turn [J.P.] over to the
authorities.” Id. at PageID 139. Neither the
government nor Wagner present any evidence about
what he did with J.P.’s information, although the
answer may be nothing, since Wagner was arrested
shortly after the exchange. Regardless, I think that
Wagner’s vague response to messages from a user who
sought to kill J.P. can, at most, weigh slightly in favor
of a finding of dangerousness.
Wagner’s other Signal exchange is even less
substantial. Wagner conducted an online search for a
journalist named N.S. He then sent the result
showing a current address and phone number to
another person with the message “I may have found
where he’s hiding.” Id. at PageID 135. There is no
additional information about the exchange. It is
possible to make any number of assumptions about
the message and Wagner’s intent, but the government
52a
has presented no evidence that justifies reading it as
threatening.
In sum, the government construes Wagner’s social
media posts and private messages as “voluminous”
evidence of his dangerousness, Gov’t Br. at 29
(quotation omitted), but I read the evidence as
presenting a more nuanced picture of his political
beliefs and intentions, cast with plenty of bravado and
rhetoric. Relevant to my analysis, the government
does not allege that Wagner engaged in any violence
or threatened to engage in any violence himself. The
government instead argues that it has proven
Wagner’s dangerousness through his calls to violence.
Even setting aside the fact that having thousands of
“followers” on a social media platform is not
equivalent to having a “large, receptive, and
responsive audience,” id. at 23, 25, none of Wagner’s
supposed calls to violence are alleged to have come to
fruition. That others made isolated comments on
Wagner’s posts that refer to weapons does not prove
his dangerousness either. Of course, the district court
need not wait for violence to occur to justify pretrial
detention, but the government fails to show that
Wagner’s rhetoric was likely to cause any.
Accordingly, I agree with the district court that the
government’s evidence of social media posts and
Signal messages is insufficient to meet its burden to
establish by “clear and convincing evidence” that
Wagner is so dangerous that no conditions of release
could protect the community.
Turning to Wagner’s risk of nonappearance, I am
similarly unpersuaded by the government’s limited
evidence. The government points to Wagner’s
53a
outstanding warrant from Iowa, where he was listed
as an absconder, and his previous failures to appear.
On a misdemeanor marijuana possession case from
Iowa a decade ago, Wagner was listed as an absconder
only after the court entered a deferred judgment in
the case. Wagner proffered that he had previously
appeared in Iowa court to resolve the case, resulting
in the dismissal of one charge and a deferred
judgment on the other. Wagner learned about the
outstanding warrant at his initial detention hearing
and was working to resolve it during his brief period
of pretrial release. His other failures to appear stem
from misdemeanor traffic cases in Minnesota.
Although not admirable, I do not weigh these
transgressions as highly predictive of Wagner’s
behavior in this federal felony case under stringent
conditions of supervised release.
Beyond these misdemeanors, the government
attempts to prove that Wagner is a flight risk by
pointing again to his social media posts and then to
his booking photo. Neither are persuasive, in my view.
On January 12, Wagner posted a video on social media
asking viewers to “[s]upport my safety - help me evade
and continue to organize.” Compl., R. 1, PageID 13.
This post, made weeks before he was charged with any
crime, again is bravado and social media posturing.
There is no evidence in the record that Wagner
attempted to evade law enforcement. Officers arrested
him at the residence where he had lived for the past
year. That Wagner spit at the officers reflects his
anger and poor judgment, but not a risk of absconding.
Likewise, while Wagner’s raising of two middle
fingers in his booking photo with the message “This is
54a
for the judge” is distasteful, it hardly establishes a
likelihood of nonappearance. Gov. Resp. to Mot., R. 21,
PageID 91. Even the magistrate who initially ordered
Wagner detained did not find the spitting or booking
photo “terribly weighty.” Feb. 5 Hr’g Tr., R. 13,
PageID 52. And I would defer to the district court’s
judgment that they are outweighed by Wagner’s
comments praising the courts and repeated
statements committing to fight this case, which he
considers a political prosecution. Further, Wagner’s
brief period of pretrial release and prompt return to
custody provides at least some evidence that he is not
a flight risk. Therefore, I do not agree that the
government has met its burden of proving that, absent
detention, Wagner will not appear in court.
C.
History and Characteristics
I next consider Wagner’s history and characteristics,
including his “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.” 18
U.S.C. § 3142(g)(3)(A). The record does not contain
extensive information about Wagner’s history and
characteristics, but it is sufficient to weigh against a
finding of dangerousness or risk of nonappearance.
Wagner is thirty-eight years old and was born and
raised in Minnesota. Outside of a four-year period
where he lived with his father in Colorado, he has
been a lifelong resident of Minnesota. He maintains
ties with several family members in Minnesota,
including his mother. Wagner has worked as a self-
55a
employed carpenter since 2020, with variable hours
and income that averages $10,000 a month. He did not
report any physical or mental health conditions to
Pretrial Services. He was addicted to prescription
opioids in 2006 but completed an inpatient treatment
program and has not used them in 20 years.
Most importantly, Wagner has no violent criminal
history. His criminal record includes traffic citations
and misdemeanor drug offenses. As discussed above,
he was listed as an absconder in a misdemeanor
marijuana possession case from Iowa after he
appeared in court and obtained a deferred judgment
in the case. Wagner also failed to appear on traffic
charges in Minnesota. But he has no record of violent
conduct. While our court has held that a violent
criminal history is not “essential” to a finding of
dangerousness, we have simultaneously noted that
such a history “eases the government’s burden of
showing dangerousness.” Stone, 608 F.3d at 950
(quoting United States v. Rodriguez, 950 F.2d 85, 89
(2d Cir. 1991)). After all, “[p]revious instances of
violent behavior are an important indicator of future
violent tendencies.” Heller v. Doe by Doe, 509 U.S. 312,
323 (1993). Although the absence of a violent criminal
history does not categorically preclude a finding of
dangerousness, I think it is the most relevant
predictive evidence here of Wagner’s lack of
dangerousness, particularly when the evidence on the
other side is excerpts of his social media posts.
Overall, then, I would hold that Wagner’s history
and characteristics weigh against a finding of
dangerousness or risk of nonappearance. Wagner has
never been charged with any violent criminal offenses
56a
and has no history of violence. While he failed to
appear for misdemeanor state court proceedings, I am
unconvinced that it establishes a risk of
nonappearance for this federal felony case, especially
under the stringent conditions imposed on him.
Otherwise, Wagner has strong ties to Minnesota
where he would reside and be supervised on pretrial
release. Therefore, I would recognize that Wagner’s
history
and
characteristics
weigh
against
incarcerating him before he is convicted of any crime.
D.
Nature and Seriousness of Danger
Finally, I turn to the “nature and seriousness of the
danger” posed by Wagner’s release. 18 U.S.C. §
3142(g)(4). The Bail Reform Act authorizes Wagner’s
detention only if he poses an “identified and
articulable threat to an individual or the community.”
Salerno, 481 U.S. at 751.
Here again the government does not argue that
Wagner will commit any violence if released but
instead focuses on the potential danger instigated by
his social media posts and Signal messages. The
nature of the danger posed by Wagner’s release is that
he will make public social media posts inciting
violence or privately communicate with others about
possible violence. The seriousness of such danger is
difficult to measure. In the abstract, online posts and
messages can pose a risk of inciting violence. But as
discussed above, none of Wagner’s posts or messages
are alleged to have caused any violence. And, to the
extent there are concerns about future violence, that
is the exact kind of danger that can be mitigated by
conditions of pretrial release like the ones the district
court imposed—a point that I further address shortly.
57a
On this factor regarding the nature and seriousness of
the danger Wagner poses to the public, I would again
defer to the district court.
In assessing Wagner’s dangerousness, the
government claims that the district court “excused
death threats against federal law enforcement and
private citizens because of its disagreements with
certain executive branch policy.” Gov’t Br. at 30.
That’s quite an accusation. And read in context, the
district court was merely recognizing (and lamenting)
the “sad state of affairs” of public polarization. Mar.
25 Hr’g Tr., R. 24, PageID 147. The district court
stated: “[U]nfortunately, in our nation at this time, I
think people are viewing the protection of the public
kind of like a two-way street. It depends on what side
of the street you’re on whether or not an individual
might feel they are protected or in need of protection.
And that’s, of course, a sad state of affairs.” Id. The
district court expressed no opinion about any federal
policy but merely noted that there was some public
opposition to such policies. It was not improper for the
district court to acknowledge, given the background of
this case, that Wagner and others viewed themselves
not as the aggressors but as those resisting aggression
and thus needing protection. That observation does
not mean that the district court discounted evidence
of dangerousness. Quite the opposite; as the majority
opinion emphasizes, the district court recognized the
seriousness of Wagner’s conduct. Maj. Op. at 9. The
district court “looked at the entire case” to determine
whether it could impose conditions to protect the
public. Mar. 25 Hr’g Tr., R. 24, PageID 147. It
determined that it could.
58a
On this record, the government has not met its
burden to show Wagner’s dangerousness by clear and
convincing evidence or his risk of nonappearance by a
preponderance of the evidence. Accordingly, I would
affirm the district court’s order releasing Wagner
under a battery of standard and special conditions.
III. Conditions of Pretrial Release
Even if I agreed that the government had met its
burden to prove Wagner’s dangerousness or risk of
nonappearance, I would still affirm the district court’s
decision not to detain Wagner. The Bail Reform Act
directs the court to incarcerate Wagner pretrial only
if “no condition or combination of conditions” could
secure his appearance and the safety of others. 18
U.S.C. § 3412(e)(1). In my view, the government has
not met its burden to show that the district court’s
conditions were insufficient to reasonably assure
Wagner’s appearance and community safety.
Consider first the district court’s stringent pretrial
release conditions. The district court appointed
Wagner’s mother as his third-party custodian, with
Pretrial Services’ approval, and confined Wagner to
home detention at her house. The court order
restricted him to his mother’s home at all times,
excluding only employment, education, medical
treatment, attorney visits, court obligations, or
essential activities with prior approval. Even with
Pretrial Services’ approval, the order limited his
movement to Minnesota and the Eastern District of
Michigan and required him to obtain special
permission to enter the Twin Cities. On top of the
home detention, the district court placed Wagner
under GPS monitoring, meaning law enforcement
59a
constantly tracked his whereabouts, and required him
to check in with Pretrial Services. As to technology,
the district court limited Wagner to one computer and
one phone with Pretrial Services’ monitoring software
installed, so all his activity on both devices was visible
and constantly tracked as well. Wagner was forbidden
from posting on social media, participating in protests
or demonstrations, or encouraging others to do so. He
was also prohibited from contacting his alleged victim
or anyone else who may be a victim or witness in his
prosecution, and from encouraging others to do so.
And the district court prohibited him from possessing
any dangerous weapon or engaging in “assaultive,
threatening, or harassing behavior or statement[s].”
Order, R. 23, PageID 118. Wagner himself proposed
many of these conditions, and he readily agreed to
others imposed by the district court at his detention
hearing. During the brief period of his release on these
conditions, he appears to have complied with all the
requirements.
These conditions “reasonably assure[d]” the district
court that Wagner would appear in court as required
and would not harm anyone, and I would defer to that
determination. 18 U.S.C. § 3142(e)(1). The conditions
targeted Wagner’s dangerousness as the government
describes it. Recall that the government argues that
pretrial detention is necessary not because Wagner
will directly harm anyone, but to protect the public
from Wagner’s “call[s] for his thousands of followers”
to engage in violence and to protect J.S. from
Wagner’s doxxing. Reply Br. at 5. By the government’s
account, then, Wagner’s danger to J.S. and the
broader community stems entirely from his online
60a
activity. Consequently, the release conditions monitor
and severely restrict Wagner’s online activity,
addressing that concern. The district court limited
Wagner’s access to approved devices with monitoring
software and forbade him from posting on social
media, asking anyone to post on his behalf, or making
any threatening statements. So, Wagner is prohibited
from accessing any of the social media platforms
where he could make dangerous posts, and Pretrial
Services is monitoring his device activity to ensure
compliance.
The government argues these conditions are not
enough because there is a risk that Wagner will not
comply with them. It raises two specific concerns:
first, that the internet-based nature of Wagner’s
activity makes it impossible to ensure compliance;
and second, that Wagner’s personal history and
attitude towards the government throughout these
proceedings show that he “despises and will skirt
federal authority at the first opportunity.” Gov’t Br. at
38. I find neither argument convincing.
The government first argues that the pretrial
release conditions are insufficient because Wagner’s
dangerous conduct takes place online. The
government stresses that Wagner can access the
internet regardless of his location, but the pretrial
release conditions are not about preventing internet
access entirely; they focus on monitoring and
restricting his access to enhance safety. The
conditions mandate that Pretrial Services will
monitor Wagner’s internet access on approved devices
and his compliance with the prohibition on social
media use. These conditions are targeted at the
61a
danger that Wagner is alleged to pose: the incitement
of violence through social media posts. Even if Wagner
managed to create a new social media account without
getting caught by the company or the two Pretrial
Services departments supervising him, it is difficult to
imagine that he could build a following and
successfully incite violence before getting caught.
Wagner’s posts would be public, and if history is any
predictor, many of them would include his face, which
would make his noncompliance easy to detect.
Furthermore, the acute ICE activity in Minneapolis
that was the primary subject of Wagner’s posts has
abated, meaning public interest in any posts about
Minneapolis has likely declined as well. So it is far
less likely that any new posts from a brand-new
account would gain the attention of his prior ones
made at the height of Operation Metro Surge or pose
the same alleged risk of danger.
Despite these stringent limitations, the government
and the majority contend that internet-access
limitations are often ineffective, citing examples from
some of our cases. Distilled, their argument is that
because some people break conditions limiting online
access, they are essentially never sufficient to protect
the public from online crime or danger. But if that’s
so, then every defendant accused of dangerous online
activity must be incarcerated pretrial. And that is not
the rule. Indeed, there is a possibility of noncompliance in every case, no matter the conditions; for
example, detainees sometimes remove their GPS
ankle monitors or escape from their third-party
custodians. Searching our cases, the government
could identify examples of various pretrial conditions
62a
that are violated, just like the case examples provided
by the majority here. Yet, the possibility that any
condition can be violated does not mean we can
presume noncompliance in any individual case.
None of the cases cited by the government and the
majority demonstrate that pretrial detention is
necessary to protect against the online danger alleged
here. In each of the cited cases from our court, there
was—unlike here—a statutory presumption in favor
of detention because the defendant was indicted for a
particularly grave offense. See United States v. Foster,
No. 20-5548, 2020 WL 6791572, at *1 (6th Cir. July
20, 2020); United States v. Carpenter, No. 22-5933,
2023 U.S. App. LEXIS 2386, at *2 (6th Cir. Jan. 30,
2023); United States v. Hoilman, No. 22-6108, 2023
WL 4074630, at *1 (6th Cir. Apr. 24, 2023); United
States v. Moore, No. 24-3017, 2024 WL 3294950, at *1
(6th Cir. Apr. 17, 2024). United States v. Watt, No. 245322, 2024 U.S. App. LEXIS 13950, at *2 (6th Cir.
June 7, 2024); see also United States v. Hir, 517 F.3d
1081, 1093 (9th Cir. 2008). In these cases, even when
the defendant rebutted the statutory presumption of
detention, the gravity of their charged crime still
weighed heavily in our analysis. See Watt, 2024 U.S.
App. LEXIS 13950, at *2-3. But judicial skepticism of
internet-access limitations in grave cases where there
was a statutory presumption of detention does not
mandate distrust of internet-access limitations writ
large. And it does not justify the same skepticism in
cases, like Wagner’s, where there is no such
presumption. On the contrary, there is a presumption
that Wagner is entitled to pretrial release. Stone, 608
F.3d at 945. Nor are the few district court cases the
63a
majority cites, which reject internet-access limitations
where the statutory presumption of detention was not
present, analogous to this one. The courts expressed
skepticism about the efficacy of conditions where a
defendant had already violated court-ordered
internet-access limitations, United States v.
Waldman, No. 18-4701, 2018 U.S. Dist. LEXIS 98548,
at *12-13 (S.D.N.Y. June 12, 2018), or exhibited other
dissimilarities that weighed against efficacy. So none
of these cases, individually or together, convince me
that generalized concerns over the efficacy of online
restrictions are enough to disturb the district court’s
judgment.
Moving
beyond
generalized
concerns,
the
government next argues that Wagner is unlikely to
comply with any of the pretrial conditions because he
has an antagonistic attitude toward the federal
government. As evidence, the government points to
Wagner’s expression of animosity to the legal system.
In one social media post, Wagner asked viewers to
“[s]upport my safety — help me evade and continue to
organize.” Compl., R. 1, PageID 13. And in his booking
photo, he flipped the bird while saying, “This is for the
judge.” Gov. Resp. to Mot., R. 21, PageID 91. While
these messages may suggest noncompliance with
judicial orders, there are countervailing facts in the
record too. Though boasting online that he wanted to
evade law enforcement, he never tried to; officers
arrested him at home. He also posted on social media
several times indicating his faith in the judicial
system as the answer to what he viewed as
government misconduct. Wagner has also repeatedly
expressed his desire to publicly fight this case—which
64a
he considers a political prosecution—in court, further
undermining the government’s claim that Wagner
disrespects the court and will not comply with his
pretrial release conditions. For these reasons, while
Wagner obviously disagrees with ICE policies and
perhaps with federal law enforcement more broadly, I
would not assume that his political beliefs mean he
will not comply with pretrial release conditions.
Of course, neither Wagner’s track record nor the
stringency of the conditions can guarantee Wagner’s
compliance. But that is not the test under the Bail
Reform Act. The law requires “reasonable assurance,”
but it “does not demand absolute certainty that a
defendant will comply with release conditions.”
United States v. Munchel, 991 F.3d 1273, 1283 (D.C.
Cir. 2021) (citation modified). A “stricter regime would
be only a disguised way of compelling commitment in
advance of judgment.” Id.; see also United States v.
Orta, 760 F.2d 887, 891 (8th Cir. 1985). We may want
a guarantee of safety and compliance, especially in the
face of social media posts that Wagner doubtlessly
designed to be shocking. But we cannot detain
presumably innocent defendants pretrial unless the
risk of danger and absconding are so high that no
conditions of release could reasonably abate them.
Affording due deference to the district court, I do not
believe the government satisfied that high standard
here. So I would affirm the release order.
CONCLUSION
In my view, the district court’s conditions of release
reasonably assure Wagner’s appearance in court and
the safety of the community. Accordingly, I
respectfully dissent.
65a
APPENDIX B
_________
UNITED STATES DISTRICT COURT
for the
Eastern District of Michigan
_________
UNITED STATES OF AMERICA,
Plaintiff,
v.
KYLE EDWARD WAGNER,
Defendant.
_________
Case No. 26-CR-20059
_________
Filed: March 25, 2026
_________
ORDER SETTING CONDITIONS OF RELEASE
_________
IT IS ORDERED that the defendant's release is
subject to these conditions:
(1)
The defendant must not violate federal, state,
or local law while on release.
(2)
The defendant must cooperate in the collection
of a DNA sample if it is authorized by 42 U.S.C.
§ 14135a.
(3)
The defendant must advise the court or the
pretrial services office or supervising officer in
66a
writing before making any change of residence
or telephone number.
(4)
The defendant must appear in court as
required and, if convicted, must surrender as
directed to serve a sentence that the court may
impose.
The defendant must appear at (if blank, to be
notified):
___________________________________________
Place
on ________________________________________
Date and Time
If blank, defendant will be notified of next
appearance.
(5)
The defendant must sign an Appearance Bond,
if ordered.
ADDITIONAL CONDITIONS OF RELEASE
IT IS FURTHER ORDERED that the defendant’s
release is subject to the conditions marked below:
(6) The defendant is placed in the custody of:
Elizabeth Plamondon
(See separate Agreement to Assume
Custody of the Defendant)
(7) The defendant must:
(a) report, as directed, to:
Pretrial
Services
Probation Department.
Agency.
67a
(b) continue or actively seek
employment. Provide verification to
the supervising officer, as requested.
(c) continue or start an education
program and provide monthly
verification to the supervising
officer.
(d) not apply for or enter into any loan
or other credit transaction without
the previous written permission of
the pretrial services office or
supervising officer.
(e) surrender any passport, enhanced
identification, or international travel
documents immediately to the
supervising officer as directed.
(f) not obtain a passport, enhanced
identification, or any international
travel documents.
(g) abide by the following travel
restrictions on personal association,
place of abode, or travel:
Travel restricted to the Eastern
District of Michigan;
Travel restricted to the State of
Michigan;
Travel restricted to the
Continental United States;
Travel restricted to: ED/MI and
state of MN
68a
Unless you have the previous
consent of the pretrial services
office, supervising officer or the
court
(h) avoid all contact, directly or
indirectly, including but not limited
to:
co-defendant;
any person who is or may become
a victim;
other: any alleged victim(s)
list to be provided by U.S.
Attorney.
(i) obtain medical or mental health
treatment as directed by the
supervising officer.
i) provide a co-payment for
treatment costs as directed by
the supervising officer.
(j) for all probation and/or supervised
release violations, abide by all
conditions in the Judgment Order under
docket#
(k) maintain residence at a residential
reentry center as directed by the
supervising officer.
(l) reside at the bond address, and any
changes in residence must be preapproved by the supervising officer.
(m) not possess a firearm, destructive
device, or other dangerous weapons.
69a
(n) remove all firearms, destructive
devices or other dangerous weapons
from bond address and provide
verification to the supervising officer
within 48 hours of release.
(o) surrender any Concealed Pistol
License (CPL) to the supervising officer
within 48 hours of release.
(p) not use alcohol:
at all
excessively.
(q) not use or unlawfully possess a
narcotic drug or other controlled
substances defined in 21 U.S.C. § 802,
unless prescribed by a licensed medical
practitioner. Provide documentation of
any prescribed medications to the
supervising officer and any new
medications prescribed by a licensed
medical practitioner throughout
supervision. Refrain from the use of
marijuana which is prohibited by
federal law.
(r) submit to any testing for a prohibited
substance, if required by the pretrial
services office or supervising officer.
Testing may be used with random
frequency and may include urine
testing, wearing of a sweat patch,
submitting to a breathalyzer, and/or any
other form of prohibited substance
screening or testing. The
70a
defendant/offender must not obstruct or
attempt to obstruct or tamper with the
efficiency and accuracy of substance
screening or testing of prohibited
substances.
(s) participate in a program of inpatient
or outpatient substance use treatment if
directed by the pretrial services office or
supervising officer.
(t) participate in the remote alcohol
testing program using continuous
electronic alcohol testing and comply
with its requirements as directed,
including not consuming alcohol.
i) pay all or part of the cost of
alcohol testing, including
equipment loss or damage,
based on your ability to pay, as
determined by pretrial services
or supervising officer.
(u) participate in the location
monitoring programs and comply with
its requirements as directed in
subsections i, ii and iii.
(i) Following the location restriction
component (Check one)
(1) Curfew. You are
restricted to your
residence every day:
From to or
71a
as directed by the
pretrial services or
supervising officer
(2) Home Detention. You
are restricted to your
residence at all times,
except for employment;
education; religious
services; medical,
substance use or mental
health treatment;
attorney visits; court
appearances; courtordered obligations; or
essential activities
approved in advance by
the court or pretrial
services office or
supervising officer.
(i) Discretionary
Leave may be
granted to
participant as
deemed
appropriate by the
supervising officer.
(3) Home Incarceration.
You are restricted to 24hour-a-day lock-down
except for medical
necessities and court
appearances or activities
approved by the court;
72a
(4) Stand Alone
Monitoring. You have no
residential component
(curfew, home detention,
or home incarceration)
restrictions. However,
you must comply with the
location or travel
restrictions as imposed by
the court.
Note: Stand alone
monitoring should be used
in conjunction with global
positioning system (GPS)
or virtual mobile
application technologies.
(ii)
submit to location
monitoring as directed by
the pretrial services office
or supervising officer and
comply with all of the
program requirements and
instructions provided.
(iii) you must pay all or part of
the cost of the program,
including equipment loss or
damage, based upon your
ability to pay as the
pretrial services office or
supervising officer
determines:
(1) Location monitoring
technology as
73a
directed by the
pretrial services
office or supervising
officer;
(2) Radio Frequency
(RF) monitoring;
(3) Global Positioning
System (GPS)
monitoring;
(4) Voice Recognition
monitoring;
(5) Virtual Mobile
Application: You
must allow the
pretrial services or
supervising officer to
conduct initial and
periodic inspections
of the mobile device
and mobile
application to verify
that 1) the
monitoring software
is functional, 2) the
required
configurations (e.g.
locational services)
are unaltered; and 3)
no efforts have been
made to alter the
mobile application
74a
(v) report within 24 hours to the pretrial
services office, or supervising officer,
every contact with law enforcement
personnel, including arrests,
questioning or traffic stops.
(w) resolve all outstanding warrants as
directed by the supervising officer.
(x) comply with all Sex Offender
Registration and Notification Act
(SORNA) requirements.
(y) you are restricted from any use of
computers and/or internet connected
devices, or any device that can connect
and exchange data with other devices
and systems of internet. You are
prohibited from accessing a computer
and the internet including but not
limited to (a) desktop or laptop
computers; (b) smartphones, smart
watches, and tablets; (c) smart
appliances, smart devices, including hub
or personal assistant devices; and (d) all
network accessing devices, including
internet connectable gaming systems.
(i) Remove all internet capable
devices from the bond address and
provide verification to the
supervising officer within 48 hours
of release.
(z) the defendant is permitted the use of
a computer and/or internet connected
device. The defendant agrees to
75a
participate in the computer and/or
internet restriction/monitoring program
and will abide by all rules and
requirements of the program. The
defendant will permit Pretrial Services
or supervising officer to configure,
manage, and install monitoring
software on all approved computers
and/or internet connected devices,
which will require the search of
computer software and hardware. The
defendant’s use and access to computers
and/or internet connected device(s) is
limited to those that can be configured,
managed, and monitored by Pretrial
Services or supervising officer. The
defendant will be responsible for the
cost of the computer and/or internet
monitoring software, based on their
ability to pay, as determined by the
Pretrial Services Agency or supervising
officer.
(aa) you are permitted the use of a
computer and/or internet for
employment purposes only. Any
computer or internet connected device
must be monitored by either the
defendant’s employer, or by Pretrial
Services or supervising officer as noted
in condition (z). The defendant is
required to notify their employer of the
allegations contained in the charging
document and the requirement that
76a
their computer and/or internet usage be
monitored. The defendant must provide
verification to Pretrial Services or
supervising officer that any computer
and/or internet connected device is
monitored as noted above.
(bb)
- Resolve all warrants within 45 days.
- Do not encourage others to have
contact with alleged victim(s).
- Refrain from posting on social media,
or directing others to post on his
behalf.
- Not participate or encourage
participation in
protests/demonstrations.
- Permission of PTS to enter city limits
of Minneapolis or St. Paul.
- Not engage in assaultive, threatening,
or harassing behavior or statement.
ADVICE OF PENALTIES AND SANCTIONS
TO THE DEFENDANT:
YOU ARE ADVISED OF THE
PENALTIES AND SANCTIONS:
FOLLOWING
Violating any of the foregoing conditions of release
may result in the immediate issuance of a warrant for
your arrest, a revocation of your release, an order of
detention, a forfeiture of any bond, and a prosecution
77a
for contempt of court and
imprisonment, a fine, or both.
could
result
in
While on release, if you commit a federal felony
offense the punishment is an additional prison term
of not more than ten years and for a federal
misdemeanor offense the punishment is an additional
prison term of not more than one year. This sentence
will be consecutive (i.e., in addition) to any other
sentence you receive.
It is a crime punishable by up to ten years in prison,
and a $250,000 fine, or both, to: obstruct a criminal
investigation; tamper with a witness, victim, or
informant; retaliate or attempt to retaliate against a
witness, victim, or informant; or intimidate or
attempt to intimidate a witness, victim, juror,
informant, or officer of the court. The penalties for
tampering,
retaliation,
or
intimidation
are
significantly more serious if they involve a killing or
attempted killing.
If, after release, you knowingly fail to appear as the
conditions of release require, or to surrender to serve
a sentence, you may be prosecuted for failing to
appear or surrender and additional punishment may
be imposed. If you are convicted of:
(1) an offense punishable by death, life
imprisonment, or imprisonment for a term of
fifteen years or more – you will be fined not more
than $250,000 or imprisoned for not more than
10 years, or both;
(2) an offense punishable by imprisonment for a
term of five years or more, but less than fifteen
years – you will be fined not more than $250,000
78a
or imprisoned for not more than five years, or
both;
(3) any other felony – you will be fined not more than
$250,000 or imprisoned not more than two years,
or both;
(4) a misdemeanor – you will be fined not more than
$100,000 or imprisoned not more than one year,
or both.
A term of imprisonment imposed for failure to appear
or surrender will be consecutive to any other sentence
you receive. In addition, a failure to appear or
surrender may result in the forfeiture of any bond
posted.
Acknowledgment of the Defendant
I acknowledge that I am the defendant in this case
and that I am aware of the conditions of release. I
promise to obey all conditions of release, to appear as
directed, and surrender to serve any sentence
imposed. I am aware of the penalties and sanctions set
forth above.
/s/ Kyle Wagner
Defendant’s Signature
Detroit, MI
City and State
Directions to the United States Marshal
The defendant is ORDERED released after
processing.
The United States marshal is ORDERED to keep
the defendant in custody until notified by the clerk
or judge that the defendant has posted bond and/or
79a
complied with all other conditions for release. If
still in custody, the defendant must be produced
before the appropriate judge at the time and place
specified.
Date: March 25, 2026 /s/ Denise Page Hood
Judicial Officer’s Signature
Denise Page Hood, U.S.
District Judge
Printed Name and
Title
80a
APPENDIX C
_________
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_________
UNITED STATES OF AMERICA,
Plaintiff,
v.
KYLE WAGNER,
Defendant.
_________
Case No. 26-20059
_________
APPEAL OF DETENTION ORDER
BEFORE THE HONORABLE DENISE PAGE
HOOD
UNITED STATES DISTRICT JUDGE
Theodore Levin United States Courthouse
231 West Lafayette Boulevard
Detroit, Michigan
Tuesday, March 24, 2026
_________
APPEARANCES:
For the Plaintiff:
Frank Dame
Mark Bilkovic
81a
UNITED STATES
ATTORNEY’S OFFICE
211 W. Ford Street, Suite
2001
Detroit, Michigan 48226
(313) 226-9526
(313) 226-9623
For the Defendant:
Also present:
Jean Pierre Nogues, III
FEDERAL COMMUNITY
DEFENDER OFFICE
613 Abbott Street, Suite 500
Detroit, Michigan 48226
(313) 967-5542
Brian Watts, Investigator
Andrea Peschke, Pretrial
Services
To obtain a copy of this official transcript, contact:
Sheila D. Rice Official Court Reporter
(313) 324-2610 • sheila_rice@mied.uscourts.gov
_________
Detroit, Michigan
Tuesday, March 24, 2026
11:39 a.m.
–––
LAW CLERK: Now calling Case Number 26-20059.
Appearances for the record, please.
MR. DAME: Good morning, your Honor. Frankie
Dame and Mark Bilkovic for the United States.
82a
MR. NOGUES: And good morning, your Honor. Jean
Pierre Nogues from the Federal Community Defender
Office on behalf of Mr. Kyle Wagner who stands to my
left. Also at my table is Brian Watts who is the FDO
investigator on this case.
THE COURT: All right. Very good. Good afternoon,
and you all may be seated.
This is a motion appealing the denial of bond; is that
correct?
MR. NOGUES: Yes, your Honor.
THE COURT: Okay. Let’s proceed.
MR. NOGUES: So, your Honor -THE COURT: So come to the podium. Thank you.
Your client is with you at counsel table right now?
MR. NOGUES: Yes, your Honor. Is the Court okay
with him staying there?
THE COURT: I’m sorry?
MR. NOGUES: Is the Court okay with him staying
there?
THE COURT: Yes, that’s fine. I just wanted to make
sure that we made a record of him being here.
MR. NOGUES: Yes.
So, your Honor, this is an appeal of a bond
determination that was made in Minneapolis,
Minnesota on February 5, 2026. And our circuit
handles appeals of bond hearings de novo. So the
Government’s statement of the procedure that they
wrote in their response to our motion is correct. So I
assume that both parties are going to proceed by a
proffer and then arguments of law.
83a
Normally at a initial detention hearing the
Government goes first. I am happy to go first if that’s
what the Court wants since it’s my appeal.
THE COURT: Does the Government want to go
first?
MR. DAME: No, your Honor. Thank you.
THE COURT: Then the defense should go first.
MR. NOGUES: So, your Honor, I want to first
provide some context for the difference between the
hearing that we’re having now and the hearing that
happened in Minneapolis.
Mr. Wagner was arrested on February 5th. He only
met his defense counsel a half hour before the Rule 40
removal proceedings where he appeared in court, and
the detention hearing was held right away. And so his
attorney only had 30 minutes to prep for the hearing.
And Pretrial Services did manage to write a report,
but it was based on a very short period of time that
they had to work with everything. They didn’t have
complete information.
THE COURT: And so that report, I think I have
that; right?
MR. NOGUES: Yes, your Honor. Well, your Honor,
I believe that Pretrial Services provided two reports,
the original one from Minnesota and then the -THE COURT: One from Detroit?
MR. NOGUES: Yes.
THE COURT: Okay. Yes, I have them both.
MR. NOGUES: And I just want to point out the
difference that time to prepare can make.
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THE COURT: The difference what?
MR. NOGUES: That time to prepare can make.
THE COURT: Okay.
MR. NOGUES: From both the defense perspective
and the pretrial perspective.
THE COURT: Well, I can see the Detroit report is
more extensive.
MR. NOGUES: And notably it is now reversing the
conclusion of the original report and recommending
bond under suitable conditions. And so we’re starting
with that. And, you know, they had the time to
actually do the background research, to do a home
visit.
I do want to point out to the Court that my client’s
mother, Beth, is in the audience. She drove here from
Minnesota to be here for the hearing and to establish
to the Court that she is ready to take her son back to
her residence if the Court approves his release. She’s
also available to be a third-party custodian if the
Court were to want that on the condition.
THE COURT: And has she been interviewed by
Pretrial relative to that?
MR. NOGUES: That I don’t know.
PRETRIAL SERVICES: Your Honor,
Peschke on behalf of Pretrial Services.
Andrea
I did verify Mr. Wagner’s information with his
mother. I have not yet vetted her for her part as
custodian, which would entail a criminal records
check, which has not yet been done.
THE COURT: Okay.
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MR. NOGUES: So, your Honor, there’s a simple way
to do this hearing and there’s a more complicated one.
The simple way would be to look at what my client is
charged with, his history and characteristics, the
strength of the evidence against him, the seriousness
of the danger that would be posed by his release. And
then the Court can see if the Government can meet
their burden of establishing clear and convincing that
no set of conditions would reliably assure safety of
others and his appearance in Court.
The complicated way is to turn this hearing into a
circus.
THE COURT: Why would we want to do that?
MR. NOGUES: Well, your Honor, that’s the
direction that the Government has taken this so far.
This is how they handled the hearing in Minnesota
and to a certain extent -THE COURT: These gentlemen were not handling
that hearing; right?
MR. NOGUES: Not them. However, it was handled
by attorneys from the Eastern District of Michigan.
THE COURT: Okay. And who were they?
MR. NOGUES: Ms. Brown was there. Who else?
Eaton Brown was one of them, and I don’t know if
there was two or not.
MR. DAME: I was in the gallery for that.
THE COURT: I’m sorry?
MR. DAME: I was in the gallery, your Honor, but I
did not appear on the record.
THE COURT: Who was at counsel table? Just Ms.
Brown?
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MR. DAME: Just Ms. Brown. That’s right.
THE COURT: All right.
MR. NOGUES: And this presentation that the
Government made at that hearing and that the
Government has echoed in its response to our motion,
and I anticipate a lot of what they’re going to focus on
when they speak in front of you, it has a lot to do with
politics. It has to do with an administration that is
looking to punish its perceived enemies. And so I want
to talk a bit about this prosecution as a performance.
As I reference articles or documents or videos, I
want the Court to be clear that I have copies for both
the parties and the Court of any articles I’m
referencing. I will make reference to certain videos.
There’s a complication that some of those videos show
the alleged victim in this case, and so I don’t know
about the propriety of showing them in Court.
However, I can speak to what’s in those videos and
confirm that I have personally observed it. I believe
the Government has seen them as well.
THE COURT: Has the Government already seen all
the materials that you’re going to be talking about?
MR. NOGUES: No, your Honor. So I’m going to
provide it to them. For the Court to understand the
context, we only received the first batch of discovery
last night in this case. So we -THE COURT: But is this stuff that’s in the
discovery?
MR. NOGUES: No. This is articles and things that
we researched after reviewing the discovery in the
case.
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THE COURT: Okay.
MR. NOGUES: So the first thing I want to note is a
New York Times article published four days ago
entitled “Go big and go loud: Inside the Justice
Department’s push to prosecute protestors.” And I’m
going to quote from that article. Again, I can provide
copies of the entire article to the Government and to
the Court if the Court would like a copy.
THE COURT: I think if you’re going to reference it
you should provide it to both the Government and to
the Court. Don’t you, gentlemen, at the table?
MR. DAME: I’m sorry, your Honor. Did you say
something? I missed that.
THE COURT: Don’t you want it provided to you?
MR. DAME: Yes, please.
THE COURT: Do you want it provided to you?
MR. DAME: Yes, please, your Honor.
MR. NOGUES: I’ll be happy to do so, your Honor.
THE COURT: Okay. Go ahead, Counsel.
MR. NOGUES: The article starts by saying, “Just
days after Minneapolis erupted into protests over the
second killing of a resident demonstrating against
immigration agents, a top justice department official
delivered a hardball message to federal prosecutors,
go after the protesters with everything you have.
“In a conference call late January, the official laid
out the department’s basis for prosecuting
demonstrators. National Security Presidential Memo
7, a sweeping directive issued by President Trump
last September, that expanded the definition of
domestic terrorism to include not only violent crimes
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like assault, but also relatively minor ones like
revealing the personal details of agents,” which is
commonly known as doxxing. We’re going to be using
that word a lot during this hearing, “or getting in the
way of immigration enforcement.”
And that official “said that coordinators in the U.S.
Attorneys’ Offices responsible for charging the
protestors should be ‘hounding’ federal agents to
make cases. He also suggested that the department
wanted headlines along with the indictment
promising that officials in Washington would be
blasting out prosecutors’ work.” And he is quoted as
saying, “Go big and go loud.”
Well, they certainly went big and loud in this case,
your Honor. The complaint that was filed in the
District of Minnesota -- well, that it was filed here,
and that was the start of this case, it’s 30 pages long.
It has one paragraph relating to the actual charge in
this case. The actual allegations in this case don’t
appear until page 28 of the 30-page document -- I’m
sorry. There’s two paragraphs. We really have two
paragraphs about it. And that section starts with the
word “additionally,” which is very interesting, because
they spend the previous 28 pages clearly indicating
that their main focus is the anti-ICE rhetoric and
protesting that my client made both online and inperson, for which he has not been charged with a
crime.
And that’s important to note, your Honor. Your
Honor has the indictment in this case. There are two
charges. One is for cyberstalking. One is for online
threats. Both allege that the victim is an individual
with the initials JS.
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THE COURT: And there’s a forfeiture allegation;
right?
MR. NOGUES: Yes, your Honor. There is no
indicted charge suggesting that he doxxed or
threatened government officials or ICE agents or
anything like that. They spend a lot of time talking
about it in the complaint, but they don’t actually
charge him with it.
After this complaint was filed and after his arrest,
the U.S. Attorney’s Office in this district put out a
press release. The headline of that press release -- and
I’m sorry, I’ll provide a copy of the press release to
everyone. The headline of the press release states,
“Anti-ICE Antifa member arrested on federal charges
of cyberstalking and threatening communications,”
all correct so far, “after allegedly calling for the
murder and assault of federal immigration officers in
Minnesota.”
That’s not what he’s charged with, but that’s what
the headline of the press release wants the public to
believe.
Clearly, and we know this from looking at the
limited discovery that we have found so far, the
Homeland Security investigations was scouring
through my client’s social media posts to try to find
evidence that he had posed threats against ICE
agents. They didn’t charge him with that. They didn’t
indict him with that. Apparently, even though that
was the focus of their investigation, they weren’t able
to get an indictment on that. It’s even easier to -sorry. It’s easier to indict a ham sandwich apparently
than to get indictments on that charge.
90a
In that press release, there’s a quote from the United
States Attorney General, Pam Bondi. This man
allegedly doxxed and called for the murder of law
enforcement officers, encouraged bloodshed in the
streets, et cetera. Again, he hasn’t been charged with
that, and there’s nothing in -- we’re going to have a bit
of a disagreement about that, about some of the
statements that my client said and whether or not
they were direct threats to ICE agents, but certainly
not enough to charge him with that. But that’s the
focus of what the Attorney General is talking about in
the press release.
Two things of note here about what Attorney
General Bondi said. One, again, not one shred of
evidence that the Government has provided that my
client either doxxed or called for the murder of law
enforcement.
And secondly, it’s notable that Attorney General
Bondi said, “Today’s arrest illustrates that you cannot
run, you cannot hide, you cannot evade our federal
agents. If you come for law enforcement, the Trump
administration will come for you.”
And that’s interesting because of the political
posturing. She refers to the Trump administration,
not the Department of Justice.
The high level Department of Justice wasn’t done,
because they provided information to the White House
press secretary. And on February 11th during a press
conference Karoline Leavitt, the White House press
secretary, actually held up a picture of Mr. Wagner as
an example of what the government was doing. This - there is a video of this. It’s available online. However,
it was also covered by local Minneapolis news,
91a
Channel 5 News. I don’t know if I have a printout of
that, but I -- she was quoted as saying, “If people are
illegally obstructing our federal law enforcement
operations, if they are targeting, doxxing, harassing
and vilifying ICE agents, they’re going to be held
accountable like this individual here who’s a selfproclaimed member of Antifa. He is a domestic
terrorist and will be held accountable in the United
States.”
Again, she is referencing allegations that are not
charged against my client, way more serious
allegations than what the Government has actually
charged my client with.
Now, all of this is performative. Who are they
performing for? I don’t know. Is it an audience of one
like so many other decisions and statements that have
been made by the administration recently? We know
that they are. Is it some sort of appeal to right-wing
voters, or maybe it’s a campaign of intimidation to
chill protestors and the First Amendment rights of
protestors in Minnesota? It’s probably a bit of all three
of those things, but it’s impacted the way that the
media is even reporting on this case.
So I have a local article from Click On Detroit, which
is the online print version of Channel 4 News here in
Detroit -- I’ll provide copies to the parties on that -where following Mr. Wagner’s initial appearance in
the Eastern District of Michigan they correctly
reported that he was charged with the cyberstalking
and online threat against the individual, but then
they say he’s also facing charges for allegedly calling
for the murder and assault of ICE agents, which is not
true. He’s not facing such charges. But, if you believed
92a
what the DOJ is saying in its press statements, if you
believed what the White House is saying in its press
statements, that’s what they’re trying to make this
case sound like.
Now, again, I don’t think that your Honor is the
audience for that. I think that they have other
motivations for saying these kind of things to the
general public.
One thing that’s consistent in all the Government’s
releases, their statements and their filings, when
dealing with the count of the online threat, they’re
always careful to say that my client’s statements
regarding the alleged victim quote/unquote would
have caused that individual reasonable fear. They
never say did cause fear. Well, why not?
Well, for one thing, we know through our
investigation in this case what JS, the alleged victim
in this case, what his response was to the act in this
case that is charged as an online threat.
My client is alleged to have posted the name, date of
birth, phone number and address of JS online and
called him a Nazi and then said, “We can all knock on
doors,” which I’ll get to why he’s saying “we can all
knock on doors in a second.”
The person that he’s talking to, JS, then responded
to my client by directly messaging him in the same
social media platform and challenged him to a boxing
match, which my client accepted a consensual
organized, promoted boxing match. They then both
subsequently posted about that on social media that
they had agreed to fight in a consensual match.
93a
Does that sound like the context of a true threat,
either intended or received? Of course not. Why
wouldn’t JS take this supposed threat more seriously?
Well, first of all, because he himself peddles in
violent online rhetoric. We have uncovered numerous
examples of him committing actual acts of
cyberstalking or online threats to individuals or
groups of people. He has posted numerous times
“death to Islam.” He has posted that “people should
find their local pedophiles and curb stalk them.” He
posted a video of himself knocking on the door of a
journalist covering the Minnesota protest, and posted
it to her account and said something to the effect of
“we know where you live.” So he himself does this kind
of thing.
Now, are his threats credible? Is he actually credibly
looking to hurt these people? I don’t know. It’s
probably hot air, because he’s an online provocateur.
That’s what he does. He lives for this kind of thing,
and he lives for the kind of response that he gets from
people who disagree with him.
The other reason why he didn’t take this more
seriously is that there was no actual threat to him.
The post that my client made that allegedly had this - well, that had a name and birth date and address, as
I mentioned in my motion, it was a repost, meaning
someone else had already put it online. My client
simply copied it and repasted it. Whatever damage
had been done by it would have already been done
arguably. The Government argues against that, but
there’s a more important point, which is that there
wouldn’t have been any damage anyway.
94a
The birth date in that post was off by years. The
address in that post, our investigation has shown my
client never even lived at an address in Oak Park,
Michigan. The address is not his parents’ address.
Our investigation shows no evidence that either of his
parents ever lived in Oak Park. They were divorced,
by the way, and lived separately for years. And then
our investigation indicated they’ve also both been
dead since 2022.
So JS knew there was nothing credible to this
posting, even if it was supposed to be a threat, because
there was simply nothing accurate about it. But,
instead of ignoring it, he engaged my client and
suggested a consensual fistfight.
Now, it might have been helpful for the Government
to actually talk to JS about this. I put forward that
they haven’t. They can tell me that I’m wrong on this,
I don’t know, but as far as I know they’ve never talked
to him. If they have, they haven’t disclosed it, which I
think says something.
And the point of all this is not, as the Government
says in their response, to victim blame. The defense is
pointing out that the Government has no victim, there
is no victim. And after getting a directive from the
White House to “go big and go loud against ICE
protestors,” after scouring my client’s social media
posts to find something to discredit him, this was the
best that they could find and the only thing that they
could actually charge and indict him with.
The first sentence of the Government’s response was
“Know thyself.” It’s good if it’s piffy, but it works both
ways, because I think we all know very well what the
95a
Department of Justice and the White House are trying
to accomplish with these kind of charges.
So let’s come back to the simpler way of doing this
hearing. Let’s look at what my client is charged with.
He’s charged with cyberstalking JS and threatening
JS online.
Cyberstalking requires a pattern of activity or
repeated behavior. It seems that in this case they’re
only alleging one particular instance. So there’s not
even good weight on the cyberstalking charge, even if
everything that they are alleging in it was otherwise
true, because there was one instance.
And then I’ve already discussed on why on the
threat count the alleged victim this case would not
and apparently did not view it as a serious threat. So
the strength of the evidence in this case is not strong.
Going towards the history and characteristics of the
defendant, he has a very minor criminal history. He
has a number of traffic-related tickets. He has a
youthful adjudication under a program called the
MAP program in Colorado for drug possession and
underage alcohol, that he successfully completed that
program, was terminated from it. The charge was
dismissed. It still shows up for federal purposes, but
it was dismissed for Colorado purposes.
It appears he has one outstanding warrant from an
Iowa possession of marijuana in a vehicle case for
failure to appear. Now, what’s interesting about that,
your Honor, is that that case was from well over ten
years ago, 2011, in fact. And there was some sort of
warrant issued after 2011, and my client actually
went and took care of it in 2016. And when he went to
96a
court they dropped one of the charges. They changed
one of the charges to a deferred sentence, gave him
probation for a year.
Something happened after that. We believe it was a
miscommunication, because my client thought he had
taken care of that case. They reissued a warrant a
month later for some sort of failure to appear at a
hearing or a meeting or something like that. He only
found out about that new warrant in Minnesota when
he was -- when he had his first detention hearing.
The Court is aware that Iowa borders Minnesota.
My client has no problem and is very happy to take
care of that warrant, and that’s the only outstanding
warrant that he has.
The next factor for the Court to consider is the
seriousness and the danger that would be posed by my
client’s release, and there is no danger. He poses no
danger to the alleged victim in this case, JS.
As we’ve said in our motion, my client will comply
with any conditions the Court imposes on him,
including a condition that he stays off social media.
He’ll have no way to contact JS. And he clearly doesn’t
know where JS or his actual family live, because all
the information that he posted was wrong.
So there’s no threat to JS. For what it’s worth, JS
has his own outstanding arrest warrant in Michigan.
He’s supposed to be serving a jail sentence. I don’t
know if -- I think he’s still in the wind. But that’s
another reason why my client would pose no safety
concern to him, because he’s at some point going to get
locked up by the authorities himself.
97a
There’s no indication of a desire by my client to do
anything other than protest and stand up to ICE. Yes,
he, as you can see in the pictures that are posted of
him online and the video that the Government is going
to show you, he gets very angry. He bears his teeth.
He yells at the screen. He’s covered in tattoos. He kind
of looks like a skinhead, but he’s not. He’s actually
pretty much the opposite of that. He got involved in
the activism of what he calls Antifa after the -- what’s
his name, Floyd -- George Floyd shooting in
Minnesota. In fact, after that he went and he got two
tattoos on his chest. One is an anti-fascist tattoo. The
other is the skyline of Minnesota to show his solidarity
with the city of Minnesota.
So his continuing actions, which I think we can refer
to as direct action, nonviolent direct action, are
consistent with somebody who has a problem with the
way that law enforcement is handling its interactions
with citizens in the state of Minnesota.
I’d also like to note a similarity in this case. And this
is going back a bit, but I forgot to point it out because
I mentioned nonviolent direct action. The
Government has a ignoble history of keeping
investigative dossiers on activists, nonviolent
activists.
So, as I’m sure the Court is aware, in 1967, FBI
Director Hoover instructed his agents to neutralize
quote/unquote Black nationalist hate groups, which
apparently included the Southern Christian
Leadership Conference. And they tapped MLK’s
phones and they tracked United Farm Workers and
the Black Panthers, Students for a Democratic
Society. These were all activist groups, nonviolent
98a
activist groups. But Hoover is quoted as saying that
he wanted to expose, disrupt, misdirect, discredit or
otherwise neutralize the activities of these
movements. And he wanted his men to be unshackled
to look for evidence in any area of say Dr. King’s life
that they deemed worthy.
They’re doing the same thing now with Antifa and
with other anti-immigration groups that exist in this
country, because they are expressing views which are
quite popular against the government’s actions,
particularly in Minnesota. They are looking to silence
them.
Having said all that, and as angry as my client is
about all this, as vocal as he has been, as online as he
has been leading up to now, Pretrial Services appears
to agree with the defense that there are conditions
that can reasonably assure that no further issues
arise from that kind of activity.
We have proposed to the Court even more stringent
conditions of release than Pretrial Services said was
necessary for this, including a condition that he
completely stay off of social media. If the Court
requires a condition that he stay off the internet
altogether, although I do think that Pretrial Services
has a good proposal about how that can be managed
with the appropriate tracking software, and despite
my client’s strong and genuinely held and frankly
legitimate political views he has agreed that he will
not attend any demonstrations, he will not encourage
people to attend demonstrations, he will stay away
from ICE activities for the entire pendency of this case
as the Court requires in order to show the Court that
he is serious with complying with the conditions,
99a
because he wants to fight this case and he wants to do
it the right way.
And, just to note, I know Pretrial Services already
did, my client has no weapons history. He has no
history of violence. And the fact of the matter is that
there is any set of conditions that can reasonably
assure his appearance and more importantly the
safety of the community.
And so we’ve appealed this because we believe that
the District Court in -- actually, I don’t know if it was
a district judge or a magistrate, but the court in
Minnesota got this wrong in part because they didn’t
have all the information, in part because the defense
didn’t have the ability to give the Court complete -more complete context and that Pretrial Services did.
Well, this Court has not now, and so we’re very glad
that the Court can make this decision de novo.
THE COURT: Okay. Thank you.
MR. DAME: Good morning, your Honor.
I’m sorry, your Honor?
THE COURT: Are you ready to proceed?
MR. DAME: Yes, I am, your Honor.
THE COURT: Okay.
MR. DAME: Good morning, your Honor. May it
please the Court, Frankie Dame for the United States.
I agree with your Honor and defense counsel out of
the gate. We do not want to make this a circus. That’s
not our intention. We would like to stick to the 3142(g)
factors. We want to present that evidence to the Court
as we did in our brief, fully and completely, without
any histrionics or without any sort of embellishment.
100a
I think my brother counsel did a fabulous job
defending his client. I think the biggest issue for his
argument unfortunately is his own client and his own
client’s words.
We provided page after page after page for your
Honor and for the magistrate judge in Minnesota, not
of post complaint briefing by very able defense
counsel, but of defendant himself online, serially
online.
And I think it’s important to note, your Honor, that
in everything we just heard there’s not one word said
attempting to contextualize any particular post that
the Government cited. There wasn’t one word of
explanation for phrases like “hunt ICE, put your
hands on them, it’s kill or be killed, let’s do this at the
barrel of a gun,” et cetera, et cetera. There’s not one
word of disagreement from defense that he posted
this.
There was, I think, unfortunately quite a bit of
distraction, your Honor, referencing things well
outside the purview and context of this particular
discrete question before the Court, which is whether
the Government can show by clear and convincing
evidence that defendant is dangerous, or by a
preponderance of the evidence that there’s a risk that
he will not appear.
And I’m not going to speak to a lot of either the
history or the broader Department of Justice decisions
here, first of all, because much of that candidly is
above my pay grade, or our pay grade, how the
Attorney General or the White House press secretary
want to talk, but also far more importantly because
101a
it’s simply not relevant to the question before your
Honor.
In defendant’s brief, and you heard the same thing
today, defendant complains that the Government
talks about -- I believe in his brief he says “harps on”
his history of posting, what he calls protected First
Amendment activity.
And here today, your Honor, there’s quite a bit of
talk, many questions raised, about why this sort of
conduct hasn’t been charged, the implication being if
it’s that big a deal the Government should be doing
something about it.
I can represent to your Honor that the Government’s
investigation into Mr. Wagner is ongoing. I can also
represent to your Honor that the only charges at this
stage that have been presented to the Grand Jury
have been returned as an indictment by the Grand
Jury.
THE COURT: I don’t know what you mean by that.
Do you mean that these were the only charges that
were presented and that the Grand Jury came
forward with an indictment on all the charges that the
Government presented? Is that what you mean?
MR. DAME: Exactly, your Honor. I think there’s an
intimation at least by defense counsel during his
argument that perhaps the Government had
presented some other charge that didn’t -- and that’s
just not true. The Government has presented two
charges to the Grand Jury, and the Grand Jury
returned an indictment on those two charges.
THE COURT: Okay.
MR. DAME: The two charges here.
102a
I want to say a couple words, your Honor, about the
defendant’s dangerousness. I want to say a word
about his nonappearance, and then I want to briefly
discuss the bond conditions and the Pretrial Services
report that you received.
Regarding his dangerousness, I’m not going to
regurgitate what we’ve already said in our brief. You
have that. I know you have the pleadings. I know
you’ve been able to read them. Besides pointing out,
your Honor, that nothing in that is substantively
disputed by defendant.
What I do want to point out is I think the facial
falsity of claiming the defendant was merely calling
for peaceful protest. And I want to highlight a couple
things for your Honor.
The first one is when in defendant’s own words he
says, quote, we’re done with peaceful protests, end
quote. I think your Honor should take him at his word.
He wasn’t calling his thousands of followers to
peacefully protest with language like “hunt federal
law enforcement, fight them, put your hands on them,
kill or be killed,” et cetera. This is not peaceful protest
language. This is extremist language, and he himself
said so.
I think even in defendant’s briefing he gives away
perhaps a little more than he meant to when he says
this wasn’t a call to assault federal officers, even
though it plainly was for months, for multiple months.
That’s what the defendant was doing. He says this
was mainly a call perhaps to impede or obstruct them.
Impeding and obstructing forcibly as defendant asks
is like just assaulting, a federal felony. I think it’s an
important admission for the Court to understand that
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in his briefing the defendant is admitting functionally
that he was calling for federal felonies to take place in
Minnesota.
And not only was this a consistent drumbeat, your
Honor, but as the Government’s briefing pointed out,
and I think this is a key and crucial point that the
Court can’t lose track of, the defendant’s behavior was
escalating at somewhat of a fever pitch just before he
was arrested. He hadn’t toned down. His trajectory
was consistent, and it was in a dangerous and
extremist direction.
And, your Honor, I want to point out something. I
want to step back and kind of address what I think is
perhaps the largest flaw in defendant’s argument that
you just heard. And that is what I will call an
inordinate focus strictly on JS at this stage of the
proceeding.
What you just heard was in many respects a very
fine closing argument after a trial. But it wasn’t
focused on the factors of a detention hearing, which
asks about dangers, not dangerous -- not just to any
potential victim, but to the community as a whole and
to others.
And I don’t want to lose that point, your Honor. I
think perhaps we’ve gotten a little caught up in the
merits of the case, and the Government’s going to
litigate those merits at the proper time, but at this
stage the question is of dangerousness more broadly
to the community.
And I would put everything you just heard about
this inordinate focus on JS into that bucket. The
Government is not JS’s counsel. We are not
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responsible for his interactions with Mr. Wagner. I’m
not standing up here to defend anything he has said
or not.
What I’m up here arguing, what the Government is
arguing, is that Mr. Wagner poses a threat not just to
JS, but as we make very explicit in our briefing to the
broader law enforcement community. That’s precisely
what the magistrate judge in Minnesota found.
The finding of dangerousness was not confined and
it ought not to be confined under 3142(g) to simply the
victim. This is a holistic, all-encompassing analysis,
and your Honor knows that better than I do.
Turning briefly to his nonappearance, the
nonappearance concerns here, I think the -- not even
the elephant in the room. The obvious issue here is
defendant lives hundreds and hundreds and hundreds
of miles away from this district. And I understand
that it’s possible to supervise somebody that far away,
that it’s possible that somebody that far away could be
trusted to appear, but I think for the various reasons
given before there’s serious concern that defendant
will appear and if he will abide by those conditions.
He simply does not have a stable residence in this
district.
Defense counsel tried to explain away his criminal
history. The Government agrees. His criminal history
is not vast and it’s not nefarious, certainly not as
nefarious as we see in many of our cases. But what it
does show, your Honor, is it does show a willingness
to disobey the law. And I think, your Honor, that is -that pales in comparison to his recent statements -THE COURT: Pales in comparison to his what?
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MR. DAME: To his recent statements online about
evading federal law enforcement and about pushing
back against federal law enforcement.
As I noted earlier, your Honor, I had the opportunity
to be there in the gallery during Mr. Wagner’s initial
detention hearing in Minnesota. And as part of my
proffer I would like to offer to the Court that in
Minnesota what AUSA Brown did, and I want this to
be clear, AUSA Brown really read into the record what
you see in the facts section of our brief. She read into
the record all of his posts.
I completely disagree with any connotation from
defendant that it was a circus of any kind. It was a
very measured hearing. And I just -- I don’t want the
Court -- I want the Court to understand that the
hearing proceeded totally just like this one is, calmly,
no histrionics. Defendant’s own words were put up on
screen. And to the extent that that feels like a circus,
your Honor, I think it is because that comment is very
jarring and ought to be, because it is extremist and it’s
dangerous.
But during that hearing in Minnesota, I think it’s
important to note for your Honor, defendant was not
chastened, and I want this to be -THE COURT: Defendant was not what?
MR. DAME: He was not chastened. He was not
humbled at all for being there. During Ms. Brown’s
recitation of his words, defendant repeatedly and
vigorously nodded his head very aggressively, looking
at the Court, looking at AUSA Brown, looking at his
defense counsel. He is not ashamed of his conduct.
Nothing in the record indicates that he regrets for one
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moment urging his supporters to inflict violence on
federal law enforcement. Nothing in the record
indicates that his philosophical outlook on the world
has changed, that he has softened, that he’s different.
The person sitting here in the courtroom is the exact
same person with the exact same beliefs and the exact
same convictions and willingness to urge violence that
we saw in Minnesota and that made those posts in our
briefing.
And one more note, your Honor. This has come up
several times in the briefing, and it came up here
today. And, for the record, the Government was
completely willing in Minnesota to postpone the
hearing, and we were very clear about that.
Defendant made the choice to proceed. We offered a
continuance. We were in no rush to rush the PE and
the
detention
hearing,
which
were
held
simultaneously. Defendant made that call with his
counsel.
THE COURT: And I’m not sure what point you’re
making by that.
MR. DAME: Simply, your Honor, that the
Government -- we weren’t trying to pressure the
defendant into immediately going into a detention
hearing unprepared. We were fine to wait. We would
have waited as long as he needed or pretrial wanted
to get the correct information. There was no pressure
to immediately go into some sort of gamesmanship.
There was no gamesmanship at all there.
Your Honor, I want to finish by saying a few words
about the bond conditions in the Pretrial Services
report.
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I understand the recommendation in the Pretrial
Services report, and I think it’s flawed in a couple
ways. The first and most significant way is as far as I
can tell, your Honor, there was no meaningful
grappling by Pretrial Services with the extent of Mr.
Wagner’s dangerousness. I think there are a few lines
in the report. I think just at the end there’s a token
like or two about his potential dangerousness to the
community and his extremism. It’s a few words in the
report.
There’s a great body of evidence pointing to
defendant’s dangerousness with all the language that
we talked about, and I won’t keep on reiterating that.
Your Honor has seen that in our briefing and I’ve said
it here already. But there was not a substantive
grappling in that report. And I think if we
substantively really dig in and grapple with the sorts
of things the defendant is saying, I think the calculus
on dangerousness is very different.
And I want to -- and if I can just emphasize,
defendant is not making these comments into a
vacuum, and I should have said this before. Defendant
has thousands of followers. And, as we note in our
briefing, his followers interact with him online. He’s
not just somebody in a basement somewhere getting
two “likes” every post he makes. He has hundreds or
thousands of “likes,” interactions, many of them
people saying affirmative things, saying they’re going
to take part in this. We offered your Honor just one
example of that where someone says in response to
posts from defendant understanding the violent
nature of them.
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And I would point your Honor to our briefing to the
exact wording that “it’s time for federal law
enforcement to meet our friends AR-15 and nine
millimeter.” This is a sort of reaction that defendant
wants. This is the sort of reaction that he’s getting.
Ultimately, your Honor, the substantive merits of
the bond conditions are the ones proposed by the
defendant or the ones proposed by Pretrial Services.
They simply don’t matter, whatever the substantive
merit of that is, and that’s because defendant has a
philosophical commitment and a presupposition to not
obey law enforcement, especially federal law
enforcement. He has made this clear time and again.
There’s no reason to believe that whatever the Court
tells him, whatever the Court commands him to do,
that he will obey it. A perusal -THE COURT: Are you saying that because he has
not obeyed other federal officials or because he has not
obeyed other federal judges or other judges?
MR. DAME: I think it’s actually a third option, your
Honor. I’m saying that because of his philosophical
commitments based on his membership in Antifa, and
I’m saying that based on his conduct post arrest in this
case.
He physically resisted law enforcement. He spit on
them. He repeatedly harassed them verbally
afterwards. Before the magistrate judge in Minnesota,
he showed no remorse or concern. There was a lot of
joking and smiling going on. Nothing about his
conduct after his arrest shows that.
And I will also point, as we did in our brief, to his
criminal history, his failure to clean up his warrants.
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I know defense counsel has spoken to that, and I don’t
have any other information on that than what we’ve
already said and what you’ve heard.
But, your Honor, a key tenet of the defendant’s
world view, of this Antifa world view, is to resist law
enforcement, specifically federal law enforcement.
This is not a hobby for him. It’s his identity. It’s been
his identity for quite some time. This isn’t a passing
fad. It’s not something he’s just come across. He’s
believed this for many years.
I understand that -- and I want to talk substantively
about one pretrial bond condition and suggested bond
condition in a moment, but before that, just to put a
bow on the general idea that defendant is bondable at
all given who he is and what he’s said, bond is
fundamentally a question of trust, and your Honor
knows this. If the Court let’s the defendant out, it’s
trusting that he’s not going to be dangerous. It’s
trusting he’s going to abide by the bond conditions,
that the bond conditions can work. It’s trusting that
he’s going to appear.
And here there is no reason to trust. There’s no
reason to trust that the defendant who has been
constantly serially online, is the single most
important core part of his identity, is suddenly going
to be able to quit cold turkey, go 180 and say nothing.
That’s not realistic.
THE COURT: You don’t see that any in any other
cases?
I’m just asking if you see that in other cases, people
who abide by their bond conditions even though
there’s nothing to indicate that they would so do?
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MR. DAME: I think, your Honor, in the run-of-themill cases. I’m in the violent crimes unit, so a lot of our
work is FIPs and gun possession and that sort of
thing.
THE COURT: Is what now?
MR. DAME: Is felon in possessions or gun
possession. I would say in those cas
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