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May 10, 1994



The opinion of the court was delivered by: WILLIAM D. STIEHL


STIEHL, District Judge:

 Petitioner, Augusto Guillermo Falcon, is a pre-trial detainee housed at the United States Bureau of Prisons-Marion, Illinois, under indictment in the Southern District of Florida. He has been at USP-Marion since October 15, 1993, and is the only pre-trial detainee currently housed at USP-Marion. Petitioner has filed an application for writ of habeas corpus or, alternatively, for a writ of mandamus, in which he challenges the legality of the conditions and the situs of his detention. Named as respondents are the Bureau of Prisons, Michael B. Cooksey, Warden at USP-Marion, and the United States Marshals Service, collectively referred to as "respondents." The respondents have raised the issue of the Court's jurisdiction over this action, asserting that petitioner cannot challenge his placement at USP-Marion by way of a petition for a writ of habeas corpus. The Court heard oral argument on the jurisdictional issue, and took the matter under advisement.


 Falcon is under indictment in the United States District Court for the Southern District of Florida as a drug "Kingpin" for importing 75 tons of cocaine into the United States, CR-91-6060-MORENO. Petitioner faces charges for importing cocaine for conspiracy to distribute, and for operating a continuing criminal enterprise, inter alia. Indicted with Falcon were Salvador Magluta, Orlando Benigno Lorenzo, Juan Adriano Barroso, Luis Florentino Escobedo, Terry Dominick Blanco, Antonio Garrudo, Louis Mendez, Victor Manuel Alvarez and Gustavo Falcon. The government seeks forfeiture of thirteen different parcels of real property in Florida, any personal property contained therein, and in excess of 2 billion dollars which it claims represents the proceeds of the illegal narcotics trafficking alleged in the indictment.

 Petitioner alleges that shortly after his arrest on October 15, 1991, he was placed in administrative detention at MCC-Miami, and remained there until November of 1991. On August 25, 1992, after Hurricane Andrew heavily damaged MCC-Miami, petitioner was transferred to FCI-Talladega. Between November 1991 and June 1993, petitioner was held in administrative segregation at either MCC Miami or FCI-Talladega. On June 29, 1993, petitioner was transferred to USP-Atlanta and placed in the maximum security unit. From August 2 to 6, 1993, he was transferred to the maximum security unit at MCC-Miami for evidentiary hearings. He was then sent back to USP-Atlanta until September 21, 1993, when he was returned to MCC-Miami for hearings preceding the original trial date.

 Just before trial was to commence, the district judge granted a motion to suppress on September 30, 1993, prompting an appeal by the government on October 1. On October 7, 1993, petitioner was transported to USP-Marion. As of the date of this Order, the appeal of the suppression ruling is still pending, and the trial date has been rescheduled for January 3, 1995.

 The record reveals that a number of potential witnesses in this case have been murdered, including Bernardo Gonzalez; former co-defendant Luis Escobedo; and Juan Acosta, an attorney who allegedly laundered money for Falcon and Magluta. The respondents further allege that other potential witnesses have been shot, but have survived their wounds, including Juan Barroso, an alleged drug smuggler who was scheduled to testify against petitioner.

 The Falcon drug cartel is reputed to have vast financial resources available, with estimated gross assets of 55 billion dollars. The record reveals, inter alia, that petitioner is believed to have attempted to corrupt an official at MCC-Miami. Based on security needs. the Marshals Service has requested placement of Falcon at USP-Marion.


 The petitioner files this action as an "emergency" application for a writ of habeas corpus under 28 U.S.C. § 2241. In the alternative, he seeks a writ of mandamus under 28 U.S.C. § 1361. Petitioner asks this Court to order that he be transferred to another institution. The respondents have challenged this Court's jurisdiction to grant petitioner the relief he seeks under either writ.

 Petitioner alleges that his Due Process and Sixth Amendment right to counsel are being violated while he is housed at USP-Marion. Specifically, Falcon asserts that: (1) his counsel is required to make four airplane trips over two days to confer with him: (2) he must provide at least 48 hours advance written notice to have access to a telephone to call counsel: (3) he is not allowed access to audio or video tape machines which are necessary to review evidence: (4) his confinement has caused his general mental deterioration which has impaired his ability to assist in preparation for trial: and (5) under the provisions of 18 U.S.C. § 4083, confinement in a United States penitentiary is limited to persons convicted of an offense punishable by imprisonment for more than one year, and therefore USP-Marion cannot be used to house pre-trial detainees.

 The record reveals that at least some of petitioner's complaints have been resolved. Initially, the Court notes that petitioner is not housed in the segregation unit at USP-Marion. I-Unit, nor in solitary confinement, nor in the control unit, but rather is housed in G-Unit located in Cell G-B-1. Of course, the nature of custody at USP-Marion is well known by this Court. Petitioner asserts that he is held in solitary confinement in twenty-three (23) hour lockdown status. All inmates at USP-Marion are housed in single-man cells, and most are restricted to their cells for 23 hours per day. See Bruscino v. Carlson, 854 F.2d 162, 164 (7th Cir. 1988), cert. denied, 491 U.S. 907, 105 L. Ed. 2d 701, 109 S. Ct. 3193 (1989). Petitioner has not sought administrative remedies regarding his placement in G-Unit at USP-Marion. (Cooksey Declaration). USP-Marion has now provided petitioner with access to audio and videotape players for use with counsel, (see Doc. #28, Ex. B to Second Supplemental Declaration of Walasinski), and the institution has eased its requirements regarding placement of telephone calls to his various counsel. (See Cooksey Declaration). There have been some problems with the type of tape player to which Falcon is permitted access. (See petitioner's filings of May 2, 1994, and May 6, 1994).

 Petitioner asserts that habeas corpus is his proper remedy for transfer to another institution because he seeks a "quantum change" in the level of his custody. Graham v. Broglin , 922 F.2d 379, 381 (7th Cir. 1991). Petitioner seeks a declaration by the Court that his Due Process and Sixth Amendment rights have been violated; an injunction enjoining respondents from restraining him in his current status: and an order directing the respondents to transfer petitioner to a federal institution closer both geographically and in travel time to his trial counsel and trial venue.

 A. Detention Standards

 Petitioner was ordered detained after his arrest in October 1991. The record reveals that the petitioner did not contest detention, and waived his right to a detention hearing. After the criminal case was taken off the October 1993 trial docket, the Marshals Service sought placement of the petitioner in a BOP facility which satisfied certain institutional security and control needs. USP-Marion was selected to satisfy those needs. (See Cooksey Declaration). Petitioner seeks detention, however, in a different federal institution which is capable of protecting his Fifth and Sixth Amendment rights. The focus of his request is for a BOP institution physically closer to Miami.

 The law governing pre-trial detention provides for reasonable access to counsel. Specifically, 28 U.S.C. § 3142(i) provides in pertinent part:

(i) Contents of detention order.-- In a detention order issued under subsection (e) of this section, the judicial officer shall--
. . .
(2) direct that the person be committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal;
(3) direct that the person be afforded reasonable opportunity for private consultation with counsel:

 The Supreme Court held in the seminal case of Bell v. Wolfish , 441 U.S. 520, 535 n.16, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), that a pre-trial detainee's claims are governed by the Due Process Clause, not the Eighth Amendment. The traditional function of the "great writ" is to secure release from illegal custody. Preiser v. Rodriguez , 411 U.S. 475, 484-85, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973). This Court's habeas jurisdiction attaches to the fact or duration of confinement, id. at 499, not the conditions of confinement. Of course, the vast majority of habeas cases concern convicted inmates who seek release from custody. Petitioner asserts that as a pre-trial detainee he is entitled to protections different from those afforded convicted inmates, and that he may seek relief from those conditions under habeas review.

 As the Court stated in Bell:

A person lawfully committed to pretrial detention has not been adjudged guilty of any crime. He has only a "judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest." And, if he is detained for a suspected violation of federal law, he also had a bail hearing. See 18 U.S.C §§ 3146, 3148. Under such circumstances, the Government concededly may detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.

 441 U.S. at 536-37, quoting Gerstein v. Pugh, 420 U.S. 103, 114, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975).

 Petitioner relies on the ruling Cobb v. Aytch, 643 F.2d 946, 957 (3d Cir. 1981). In Cobb, the court stated:

Pretrial detainees have federally protected liberty interests that are different in kind from those of sentenced inmates. Unlike sentenced prisoners who, under Meachum v. Fano, 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976), and Montanye v. Haymes, 427 U.S. 236, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976), must look to state law for the protection of their personal liberties, pretrial detainees have liberty interests firmly grounded in federal constitutional law.

 Notably, however, in the Cobb opinion, the Third Circuit did not hold that habeas was the proper vehicle for challenging the conditions of pre-trial confinement. The remedy sought in the complaint filed in Cobb was for relief from the state's violation of the pre-trial detainee's constitutional rights, presumably brought under 42 U.S.C. § 1983. The federal equivalent of § 1983 is an action brought under Bivens v. Six ...

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