United States v. Jeff McMillan Also Known as Trim-Dog

61 F.3d 917 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. UNITED STATES of America, Plaintiff-Appellee, v. Jeff MCMILLAN, also known as Trim-Dog, Defendant-Appellant. No. 95-1258. United States Court of Appeals, Tenth Circuit. July 21, 1995. ORDER AND JUDGMENT1 Before MOORE, BRORBY and KELLY, Circuit Judges. PER CURIAM. — 1 — After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. — 2 — Defendant Jeff McMillan appeals pursuant to Fed. R.App. P. 9(a) from an order of the district court denying review of its previous order that defendant should be detained pending trial. We have jurisdiction under 28 U.S.C. 1291. — 3 — Defendant has been in custody since August 25, 1994, a period of approximately eleven months. Trial is set to begin on September 18, 1995, roughly two months from now, and is expected to last about two weeks. Defendant does not dispute the magistrate judge's original finding that he would be a danger to witnesses and the community if released, but argues only that the length of his confinement is a due process violation. — 4 — "Appellate review of detention or release orders is plenary as to mixed questions of law and fact and independent, with due deference to the district court's purely factual findings." United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir.1991). We therefore review de novo the district court's determination that defendant's continued detention does not violate due process. United States v. Millan, 4 F.3d 1038, 1043 (2d Cir.1993), cert. denied, 114 S.Ct. 1375 and 114 S.Ct. 1386 (1994). — 5 — Defendant relies on United States v. Theron, 782 F.2d 1510 (10th Cir.1986), and three unpublished cases, United States v. Aguirre, No. 93-2271, 1993 WL 503181 (10th Cir. Dec. 8, 1993), United States v. Martinez, No. 93-2263, 1993 WL 483031 (10th Cir. Nov. 24, 1993), and United States v. Denogean, No. 93-2282, 1993 WL 483018 (10th Cir. Nov. 24, 1993). In all four cases, we held that a defendant awaiting trial was unconstitutionally detained where that defendant was willing to be tried immediately, and the trial was delayed due to the actions of codefendants, not those of defendant. — 6 — We have reviewed the parties' materials, including the district court docket sheet. Defendant has neither moved for a severance nor expressed his readiness for trial, and he has filed numerous motions, some of them still unresolved, that have contributed to the delay of trial. "[D]efendant 'cannot be allowed to manufacture the grounds for [his] constitutional argument.' " United States v. Peters, No. 94-2107, 1994 WL 325419, at * 1 (10th Cir. Jul. 7, 1994)(order and judgment)(quoting United States v. Infelise, 934 F.2d 103, 104 (7th Cir.1991)), cert. denied, 115 S.Ct. 525 (1994). Defendant cannot demonstrate facts to bring his case within the facts of any of the cases he relies on. — 7 — Pretrial detention does not offend the Due Process clause as long as it does not amount to "punishment of the detainee." Bell v. Wolfish, 441 U.S. 520, 535 (1979). Under the circumstances of this case, defendant has failed to establish a due process violation. — 8 — AFFIRMED. Footnotes [1] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470