                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 9 2003
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                        No. 03-2203
    v.                                          (D.C. No. CR-02-1574 MCA)
                                                      (D. New Mexico)
    DAVID HUDAK,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, Circuit Judge, BRORBY, Senior Circuit Judge, and
MURPHY, Circuit Judge.




         Mr. Hudak has been detained since August 16, 2002, on several charges:

conspiring to provide defense services to foreign persons without license from the

Department of State, using explosive materials during the commission of a felony,

exporting defense services without a license, being an alien in possession of a

firearm, importing defense articles without a license, and possessing unregistered



*
      This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
destructive devices. His trial is currently set for October 15, 2003, and on

August 29, 2003, the district court denied his supplemental motion and alternative

request for conditions of release. Mr. Hudak appeals the denial of his release

request, arguing that his nearly fourteen-month detention violates his Fifth

Amendment right to due process. We agree with the district court’s very

thorough assessment of this claim, and we affirm for the reasons stated in the

district court’s order, particularly in light of the imminent trial setting. 1

       Detention of a criminal defendant pending trial does not violate a

defendant’s due process rights under the Fifth Amendment, so long as the

confinement does not amount to punishment. See Bell v. Wolfish, 441 U.S. 520,

536-37 (1979). In considering whether Mr. Hudak’s detention has been

excessively prolonged and is no longer regulatory, but punitive, the district court

considered several factors: the length of detention; the extent of the prosecution’s

responsibility for the trial delay; the strength of the evidence of flight risk and

dangerousness, upon which the detention was originally based. See United States

v. Millan, 4 F.3d 1038, 1043 (2d Cir. 1993) (stating factors). The court also

considered the seriousness of the charges, the strength of the government’s case,



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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

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the complex nature of the case, and whether the either side needlessly added to

the complexity of the case. The district court’s assessment of the factors was

thorough, complete, and its findings were correct. 2 AFFIRMED.



                                                   ENTERED FOR THE COURT
                                                   PER CURIAM




2
       We note that our holding today does not foreclose Mr. Hudak from bringing
future due-process challenges if, as he predicts, his trial does not begin on
October 15th and his detention is prolonged.   See United States v. Salerno ,
481 U.S. 739, 747 n.4 (1987) (recognizing the existence of a “point at which
detention in a particular case might become excessively prolonged, and therefore
punitive, in relation to Congress’ regulatory goal,” but expressing no view as to
when that point is reached).

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