Truong Nhat Nguyen appeals the district court’s 2 denial of his motion to suppress incriminating statements and the fruits of the officers’ no-knock entry, as well as the district court’s failure to issue an “outrageous government conduct” jury instruction. Nguyen was convicted of conspiracy to distribute and possess with intent to distribute 500 or more grams of methamphetamine, in violation of 21 U.S.C. § 846. Nguyen asks this court to consider: 1) whether the detonation of a “flash-bang” grenade used during the arrest rendered Nguyen incapable of knowingly, intelligently, or voluntarily waiving his constitutional rights; 2) whether the government violated the “knock and announce” statute when they executed the search warrant; and 3) whether the district court erred in denying Nguyen an outrageous governmental conduct jury instruction. For the reasons outlined below, we affirm.
1. Background
Nguyen met Dean Wimer when they were both undergoing drug treatment. Nguyen allegedly confided in Wimer that he was a dangerous criminal and a “big time drug dealer” in Sioux City, Iowa, looking to expand his sales into Omaha. On or about October 20,1999, Wimer went to Nguyen’s home as an informant in cooperation with the Sioux City Police Department. While at Nguyen’s home they discussed methamphetamine trafficking, and Nguyen showed Wimer his pistols, bulletproof vests, and closed-circuit television camera system.
Based on a tip from Wimer, Omaha Police officers obtained a warrant to search Nguyen’s home on October 29,1999 at 8:07 p.m. Sioux City Special Officers first deployed a “flash bang” distraction device in the back yard of the house, then knocked on the front door, announced themselves, and less than five seconds later, deployed a second “flash bang” device in the front living room when Nguyen partially opened the front door. The officers then entered the house. The second “flash bang” device landed near Nguyen’s pant leg, which caught on fire, burning his foot and leg.
At 8:12 p.m. an officer took Nguyen outside and read him his Miranda warnings. Nguyen said he understood his rights, that he had seen the officers approach his house -on his closed-circuit television camera system, and that he did not *645 have any methamphetamine in the house. At 8:24 p.m. Nguyen was transported to Mercy Medical Center, where he was treated for his burns. He was released from the hospital at 9:01 p.m. and taken to the Sioux City Police Department. At 9:17 p.m. Nguyen received the Miranda warnings a second time. Nguyen said he understood his rights, and, according to the magistrate’s findings, made incriminating statements. 3
II. Discussion
We review the district court’s conclusions of law
de novo
and its findings of fact for clear error.
United States v. Ingle,
The second issue is whether the execution of the search warrant violated the “knock and announce” standard. A “knock and announce” entry is excused in the presence of certain exigent circumstances, including where police “have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.”
Richards v. Wisconsin,
The final issue raised is whether the district court erred in not giving the jury an outrageous governmental conduct instruction. A district court’s jury instructions are reviewed for abuse of discretion,
United States v. Beckman,
Outrageous governmental conduct is a question of law and is resolved by the court, not the jury.
See United States v. Russell,
Even if Nguyen had raised his defense in a timely manner, precedent indicates that the government’s conduct here does not rise to the level of “outrageousness” needed to prove a due process violation.
See United States v. Pardue,
III. Conclusion
For the aforementioned reasons, we affirm the district court’s denial of the motion to suppress incriminating statements and evidence, as well as Nguyen’s conviction.