214 F.Supp.2d 1193

United States District Court, D. Utah, Central Division.
UNITED STATES of America, Plaintiff,

v.

Miguel FLORES, Defendant.

No. 02-CR-289 TC.

Aug. 1, 2002.
State prisoner was indicted for conducting affairs of an enterprise, an organized gang, through a pattern of racketeering in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), conspiracy to violate RICO by a violation of RICO, use of a firearm in the commission of murder, racketeering by murder, and murder of a rival gang member, thereby committing a racketeering act. Prisoner filed writ of habeas corpus ad prosequendum challenging restrictions placed on conditions of his confinement. The District Court, Boyce, United States Magistrate Judge, held that: (1) security confinement of prisoner was justified, and (2) restrictions upon prisoner's confinement, telephone usage, and that mail would be read for threats, conspiracy criminal plots, or obstruction efforts, and limiting prisoner to only one visitor per day was warranted.
Ordered accordingly.

*1194 Leshia Lee-Dixon, Asst. U.S. Attorney, Salt Lake City, UT, for Plaintiff.
Fred Metos, Esq., Salt Lake City, UT, for Defendant.
MEMORANDUM AND ORDER

BOYCE, United States Magistrate Judge.
Defendant, Miguel Flores, has been indicted in a First Superceding Indictment (File Entry # 73) with multiple counts. Count I charges him with conducting the *1195 affairs of an enterprise, the King Mafia Disciples, an organized gang, through a pattern of racketeering in violation of 18 USC § 1962(c) the Racketeering Influenced Corrupt Organization Act (RICO). Count II charges a conspiracy to violate 18 USC § 1962(c) by a violation of 18 USC § 1962(d) (RICO Act). Count III charges a violation of 18 USC § 924(c) by the use of a firearm in the commission of murder in violation of 18 USC § 1111. Count IV charges racketeering by murder under 18 USC § 1959(a)(5), the murder was in violation of Utah Code § 76-5-202. Count V charges the murder of a rival gang member, thereby committing a racketeering act under 18 USC § 1959(a)(1). The charges carry possible life sentences. The King Mafia Disciples (KMD) is a gang operating in Utah and within Utah correctional institutions. It provides protection and security in Utah correctional institutions. The organization is highly structured and a close group with strong internal discipline and member restrictions enforceable by physical injury and death. The indictment sets out details of the organization and its functions including commission of serious crimes. The fact that members of the KMD were imprisoned, did not prevent them from allegedly committing or causing crimes outside of prison, including murder and other offenses. The prison security environment did not secure against commission of offenses on the inside and outside. Thus networking between KMD prisoners and others on the outside to commit offenses is a serious and alleged reality. The indictment provides probable cause for its allegations.
The defendant Miguel Flores was, prior to the instant charges, an inmate confined at the Utah State Prison (USP) at Draper, Utah, for the crimes of murder and arson. He was confined in a maximum security unit and appeared in court to answer the indictment on authority of a writ of habeas corpus ad prosequendum (File Entry # 20). Defendant waived his rights under the Interstate Agreement on Detainers (IAD) and was returned to the custody of the Warden of the Utah State Prison. On arraignment on the First Superseding Indictment, Flores requested to remain in custody of the United States Marshal Service (USMS) which was granted (File Entry # 103, # 105). The waiver previously executed under the IAD was withdrawn. The court found by clear and convincing evidence that defendant was a flight risk, a danger to the safety of others, (see United States v. On Lee, 208 F.3d 228, 2000 WL 228263 (10th Cir.2000)), and to the community (File Entry # 105). He was ordered detained under 18 USC § 3142(e) in the custody of the USMS.
In an allied matter, the Government presented evidence for a material witness order, under 18 USC § 3144. Evidence was presented that a major Government witness had been identified by the KMD and viciously attacked and stabbed. There was a representation that the Government feared further injury and threats to witnesses which could obstruct the prosecution. See 18 USC § 1513, 1512. The court, at the Government's request, entered an order placing restrictions on the defendant Flores' activities while in confinement to prevent or reduce the opportunity for communications in confinement and to outsiders that could obstruct justice but still allow free communication with counsel and communication with others by mail.
The restrictions imposed tight security (to be determined by the USMS or other correctional official). There were authorizations for examination of mail and restrictions on telephone calls other than to counsel.
*1196 The defendant, who came before the court on a writ of habeas corpus ad prosequendum, is still a convicted state prisoner. The writ ad prosequendum grants the United States temporary custody of the defendant. United States v. Mauro, 436 U.S. 340, 341-342, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978); United States v. Waldrup, 42 Fed.Appx. 367, 2002 WL 1481265 (10th Cir.2002); Hernandez v. U.S. Attorney General, 689 F.2d 915, 918 (10th Cir.1982) (defendant who appears on a writ ad prosequendum continues to be a state prisoner); United States v. Londono, 285 F.3d 348, 356 (5th Cir.2002); United States v. Fermin, 252 F.3d 102 (2nd Cir.2001). The writ does not change the fact that defendant is a convicted prisoner. The defendant's constitutional claims about the restrictions on him are to be addressed to defendant as a sentenced prisoner.
To allow otherwise would enable a sentenced prisoner, thereafter charged in federal court, to remain in federal custody and claim the status of a pretrial detainee with a loosening of security. However, under Bell v. Wolfish, infra, the consideration and conclusion of the issues in this case would be the same whether defendant was a sentenced prisoner or a pretrial detainee.
Therefore, the court considered defendant's conditions of confinement not to be atypical to a sentenced prisoner within Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir.1996), and not to be punishment but administrative restrictions to avoid obstruction of justice, Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Martucci v. Johnson, 944 F.2d 291, 293-94 (6th Cir.1991); Barney v. Pulsipher, 143 F.3d 1299, 1312-13 (10th Cir.1998); Resnick v. Hayes, 213 F.3d 443 (9th Cir.2000), and reasonably related to legitimate penological and other compelling governmental interests. Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).
Flores has not objected to some of the restrictions. A hearing was held on Flores' objections and the court has concluded some modifications are reasonable, but that others should remain in effect.