* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 5 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. CESAR GONZALES,

Defendant, and JASON DELATORRE,

Defendant-Appellant. No. 98-2089 (D.C. No. CR-95-538-MV) (D. N.M.)

ORDER AND JUDGMENT *

Before TACHA , BALDOCK , and KELLY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Defendant-appellant Jason DeLaTorre appeals the dis trict court’s denial of release pending trial. We have jurisdiction pur suant to 28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), and we affirm. Defendant stands charged with multiple violations o f various drug and weapons laws, racketeering, conspiracy, murder, andattempted murder. Four other defendants are also charged in the third supe rseding indictment. Defendant was incarcerated after his arrest in October of 199 5 as both a flight risk and a danger to the community. See 18 U.S.C. § 3142(e). The district court recognized that the magistrate judge considered both a flight risk and a danger to the community, although the district court apparent ly confined its subsequent de novo review and written analysis to flight risk. See 18 U.S.C. § 3145(b); United States v. Rueben , 974 F.2d 580, 585-86 (5th Cir. 1992) (district co urt reviews magistrate’s pretrial detention order de no vo), cert. denied , 507 U.S. 940 (1993); United States v. Koenig , 912 F.2d 1190, 1192-93 (9th Cir. 1990) (same). Following a hearing before the district court, the defendant’s motion for pretrial release was denied. Specifically, the dis trict court determined that defendant was a flight risk and that no condition o r conditions of release would adequately assure his presence at trial. See 18 U.S.C. § 3142 (f-g). The court-3-

further recognized that although defendant has beenin custody a considerable length of time, given the nature of the offenses ch arged, the weight of the evidence against him, defendant’s history and chara cteristics, and the nature and seriousness of the penalties defendant faces, in “b alancing defendant’s due process interest with the risk society must accept, . . . the time has not yet come when [defendant’s] continued detention arises to a constitutional violation of his substantive due process rights.” Appellant’s App., Tab A at 11. Defendant presents two arguments on appeal. He fir st contends that the district court erroneously invoked the presumption of detention because defendant faces a potential death sentence. He claims that t he murder statute, 18 U.S.C. § 1959, is not one of the statutes under which the rebuttable presumption of § 3142(e) arises. Defendant’s second argument is that defendant’s continued pretrial incarceration, now over two and a half years, violates the Due Process Clause of the Constitution. We review the district court’s order of pretrial de tention independently with due deference to the district court’s factual findi ngs. United States v. Stricklin , 932 F.2d 1353, 1355 (10th Cir. 1991). Once the reb uttable presumption arises under 18 U.S.C. § 3142(e) that no conditions of rel ease will assure defendant’s appearance and the safety of the community, the bur den of production shifts to the defendant. The burden of persuasion, of course , always remains with the-4-

government. The defendant’s burden of production i s not a heavy one, but some evidence must be produced. Id. at 1354-55; see also United States v. Cook , 880 F.2d 1158, 1162 (10th Cir. 1989). Among other things, defendant is charged with consp iracy to distribute Schedule II controlled substances in violation of 2 1 U.S.C. §§ 841(a)(1) and 846; using and carrying firearms in relation to drug tra fficking crimes in violation of 18 U.S.C. § 924(I)(1); distribution of controlled s ubstances under 21 U.S.C. § 841(b)(1)(B) and (C); and carrying and using a fi rearm during a crime of violence in violation of 18 U.S.C. §§ 924(c)(1) and(2). Under § 3142(e), a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the appearance of the person as r equired if there is probable cause to believe the person committed an offense fo r which a maximum term of imprisonment of ten years or more is prescribed und er “the Controlled Substances Act (21 U.S.C. § 801 et seq. ) . . . or an offense under section 924(c) . . . of title
18 . . . .” The indictment constitutes a determination of probable cause. See United States v. Stricklin , 932 F.2d at 1354. Defendant admits that under § 3142(e) “the district court could properly presume that [defendant] presented a risk of flight . . . .” Appellant’s Br. at 5. Moreover, t he district court may not ignore the presumption. See, e.g. , United States v. Cook , 880 F.2d at 1162 (error for district-5-

court to skip over rebuttable presumption of detent ion applicable when probable cause to believe defendant has committed crime has been established, likening provisions of § 3148 to § 3142). The district court’s concern that the possibility of a death sentence might heighten the risk of flight is certainly relevant. See United States v. El-Gabrowny , 35 F.3d 63, 65 (2d Cir. 1994) (no constitutional violation in long pretrial detention where prospectof lengthy term in prison provides great incentive to flee); United States v. Nichols , 897 F. Supp. 542, 547 (W.D. Okla. 1995) (prospect of lengthy prison term, life imprisonment or death penalty provides defendant with great incentive to flee), aff’d , No. 95-6223, 61 F.3d 917 (table), 1995 WL 430191 (10th Cir. July 21, 1996). The district court also analyzed the factors outlined in § 3142( g) and correctly determined that the government had carried the burden of persuasionon the issue of risk of flight. Defendant’s second argument is that his continued i ncarceration violates his right to substantive due process. Here, the di strict court considered the factors outlined in United States v. Millan , 4 F.3d 1038, 1043 (2d Cir. 1993). These factors are the length of the detention, the extent of the prosecutor’s responsibility for delay of the trial, and the stre ngth of the evidence on which detention is based. The district court first ackno wledged that the defendant had been in custody a long time. However, she did not find that the government’s responsibility for the delay was significant enoughto have added “considerable-6-

weight to [d]efendant’s claim that the duration of detention has exceeded constitutional limits.’” See Appellant’s App., Tab A at 10 (citing United States v. Gonzales-Claudio , 806 F.2d 334, 342-43 (2d Cir. 1986)). Moreover, the district court correctly noted that the defendant could not rely upon his own extensive motion practice to bolster the due process argument . See United States v. Infelise , 934 F.2d 103, 104 (7th Cir. 1991). Finally, the court determined that looking at the evidence on which the detention is b ased, the flight risk in particular “supports the determination that [defend ant’s] lengthy detention does not violate due process.” This conclusion was supp orted by her concern that even with strict release conditions, because of the seri ousness of the charges and penalties, defendant would flee. See id. We have noted that “the Supreme Court has not artic ulated a clear test for determining when pretrial confinement of an accusedis permissible under the Due Process Clause.” See United States v. Deters , ___ F.3d ___, No. 97-3334, 1998 WL 213675 at *7 (10th Cir. May 1, 1998). Howe ver, the government may detain a person suspected of committing a crime bef ore a formal adjudication of guilt based on its “substantial interest in ensurin g that persons accused of crimes are available for trials and, ultimately, for servi ce of their sentences, or that confinement of such persons pending trial is a legi timate means of furthering that interest.” See Bell v. Wolfish , 441 U.S. 520 534 (1979); United States v. Salerno ,-7-

481 U.S. 739, 749 (1987) (acknowledging holding in Bell v. Wolfish that “an arrestee may be incarcerated until trial if he pres ents a risk of flight”). Although each case turns on its own facts and circumstances, we note that this court has upheld pretrial incarceration of up to thirty-four months, albeit in a disposition that is not binding precedent, see 10th Cir. R. 36.3 (current policy on citation of unpublished dispositions). See United States v. Peters , 28 F.3d 114 (table), No. 94-2107, 1994 WL 325419 (10th Cir. July 7, 1994), cert. denied , 513 U.S. 1006 (1994). In sum, the district court balanced the competing interests and weighed the release conditions proposed by defendant before con cluding no conditions would adequately ensure defendant’s presence at trial. W e have reviewed the record and arguments presented by the parties; defendant is no t entitled to pretrial release. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED. Defendant-appellant’s moti on to strike portions of Plaintiff-appellee’s memorandum brief is DENIED.

ENTERED FOR THE COURT PER CURIAM