-—  @ ®

IV. United States v. Gotti

The Gotti line of cases do not change this result. Neither Gotti decision addresses the basis
for the court’s jurisdiction. See United States v. Gotti, 755 F.Supp. 1159 (E.D.N.Y. 1991); United
States v. Suleiman, No. 96 CR 933 WK, 1997 WL 220308 (S.D.N.Y. April 1, 1997). In contrast,
this court sua sponte raised the jurisdictional issue. See Weaver v. Hollywood Casino-Aurora, Inc.,
255 F.3d 379, 381 (7th Cir. 2001)(district court has independent duty to police subject matter
jurisdiction even if the parties fail to object). Therefore, the Gotti line of cases do not provide
jurisdictional support for Arnaout’s motion.

CONCLUSION

Arnaout fails to provide a valid basis for the court to modify the conditions of his
confinement. Absent any evidence that the conditions of confinement interfere with his right to
counsel, Arnaout may only challenge his placement in administrative detention and transport under
a three-man hold through a civil action. Therefore, his motion is denied without prejudice to his

right to file a separate civil action.

December 4, 2002

United States District Judge



e ®

To eliminate unnecessary detention, the court must supervise the detention within the
district of any defendants awaiting trial . . .

As the government points out, Rule 46 addresses the fact of detention, not the conditions of
detention. Indeed, the advisory committee notes to Rule 46 confirm that Rule 46(h)(1), formerly
Rule 46(g), is a “restatement of existing law and practice,” including the predecessor statute to §
3142. Advisory Committee Notes to Fed. R. Crim. P. 46(g) (1944). Therefore, Rule 46 does not
provide the court with jurisdiction to modify Arnaout’s conditions of confinement.
Ill. Falcon vy. U.S. Bureau of Prisons

Arnaout next argues the Seventh Circuit’s decision in Falcon v. U.S. Bureau of Prisons, 52
F.3d 137 (7th Cir. 1995), authorizes the court to consider his motion. In Falcon, the Seventh Circuit
reiterated the general rule governing confinement challenges:

A petitioner who seeks a ‘quantum change’ in the level of confinement must use the
writ. A prisoner who seeks anything else must use a civil rights action.

Falcon, 52 F.3d at 138. Indeed,
If the prisoner is seeking what can fairly be described as a quantum change in the
level of custody — whether outright freedom, or freedom subject to the limited
reporting and financial constraints of bond or parole or probation, or the run of the
prison in contrast to the approximation to solitary confinement that is disciplinary
segregation — then habeas corpus is his remedy. But if he is seeking a different
program or location or environment, then he is challenging the conditions rather than
the fact of his confinement and his remedy is under civil rights law.
Id., quoting Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991). Falcon also recognized that a
pretrial detainee may challenge conditions affecting his right to counsel before the judge presiding
over the underlying criminal case. /d. at 139. As discussed above, Arnaout has not provided any
evidence demonstrating that his placement in administrative detention or transport under a three-man

hold interferes with his right to counsel. Absent any such evidence, Arnaout may only challenge the

conditions of his confinement through a separate civil action.

3



Minute Order Form (06/97)

United > District Court, Northern Distric¥TM Illinois

Name of Assigned Judge ann Sitting Judge if Other
or Magistrate Judge Su  B. Conlon than Assigned Judge
CASE NUMBER 02 CR 892 DATE 12/4/2002
CASE UNITED STATES vs. ENAAM M. ARNAOUT
TITLE
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented. ]

DOCKET ENTRY:

qd) im} Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

(3) Oo Answer brief to motion due. . Reply to answer brief due.

(4) im Ruling/Hearing on set for at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at

(6) im Pretrial conference[held/continued to] [set for/re-set for] on set for at :

(7) Oo Trial[set for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) ClLocal Rule 41.1 OFRCP41(a)\(1) O FRCP41(a)(2).

(10) Ml [Other docketentry] The motion for modification of conditions of defendant’s pretrial confinement
[19-1][22-1] is denied without prejudice to his right to file a separate civil action. ENTER
MEMORANDUM OPINION AND ORDER. g B Orabew

dl [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

v | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.
courtroom

CB deputy’s ut
snitial ey cyt
TM UT U = Ditertime Feceived in
central Clerk’s Office ‘mailing deputy initials



® e..

IN THE UNITED STATES DISTRICT COURT DEC Key
FOR THE NORTHERN DISTRICT OF ILLINOIS ~6 op

EASTERN DIVISION .
UNITED STATES OF AMERICA, )
Plaintiff, } No. 02 CR 892
v. } Suzanne B. Conlon, Judge
ENAAM M. ARNAOUT, }
Defendant. }

MEMORANDUM OPINION AND ORDER

Enaam M. Arnaout (“Arnaout”) is charged with racketeering conspiracy, providing material
support to organizations engaged in violence, money laundering, mail fraud and wire fraud. On
November 22, 2002, Magistrate Judge Ian H. Levin ordered Arnaout detained pending trial. Arnaout
moves for modification of conditions of his pretrial confinement. Specifically, Arnaout challenges
his placement in administrative detention and transport under a three-man hold.'

DISCUSSION

Arnaout originally brought his motion under 28 U.S.C. § 2241 (“§ 2241"). At the hearing
on the motion, the court sua sponte raised the issue of jurisdiction and entered a briefing schedule
granting Arnaout leave to file a supplemental motion. In his supplement, Arnaout concedes his
“initial filing erroneously invoked 28 U.S.C. § 2241” as the basis for the court’s jurisdiction. In its

place, Arnaout offers 18 U.S.C. § 3142, Federal Rule of Criminal Procedure 46, the Seventh

' Arnaout was placed in administrative detention with a three-man hold transport after his arrest on April 30,
2002. Contrary to counsel’s unsupported (and repeated) representations, Arnaout has not spent more time in
administrative detention “than any pretrial detainee in the history of this district.” Reply at 2. For example,
Quan Ray spent nearly one year in administrative detentionat the Metropolitan Correction Center. See U.S.
v. Quan Ray, Case No. 96 CR 379-2, Docket Nos. 43-1 and 71-1.

| :



® ®

Circuit’s decision in Falcon y. U.S. Bureau of Prisons, 52 F.3d 137 (7th Cir. 1995) and “the Gotti
line of cases,” including United States v. Gotti, 755 F.Supp. 1159 (E.D.N.Y. 1991) and United States
y. Suleiman, No. 96 CR 933 WK, 1997 WL 220308 (S.D.N.Y. April 1, 1997). In response, the
government claims Arnaout must challenge the conditions of his confinement through a separate
civil action.
I. 18 U.S.C. § 3142

Arnaout first argues the court may consider his motion under 18 U.S.C. § 3142 (“§ 3142").
Section 3142 allows the court to order the detention of a criminal defendant pending trial. 18 U.S.C.
§ 3142(e). Section 3142(i) specifically provides:

The judicial officer may, by subsequent order, permit the temporary release of the

person, in the custody of a United States marshal or another appropriate person, to

the extent that the judicial officer determines such release to be necessary for

preparation of the person’s defense or for another compelling reason.
“Section 3142(i)(3) is designed to protect a defendant’s Sixth Amendment right to counsel, and if
that right is being infringed, [the judge] has the statutory authority to protect [the defendant’s] access
to counsel.” Falcon, 52 F.3d at 139. Arnaout does not provide any evidence that his placement in
administration detention or transport under a three-man hold interferes with his right to counsel.
Indeed, the detention order specifically directs that Arnaout be afforded reasonable opportunity for
private consultation with counsel. Under these circumstances, § 3142 does not provide the court
with jurisdiction to grant the relief sought by Arnaout.
Il. Federal Rule of Criminal Procedure 46

For the same reasons, Federal Rule of Criminal Procedure 46 does not confer jurisdiction on

the court to consider Arnaout’s motion. As of December 1, 2002, Federal Rule of Criminal

Procedure 46(h)(1) provides in relevant part: