p. 1303ON APPLICATION FOR STAY
No. A-208. Decided August 26, 1982
An application to stay, pending appeal to the Court of Appeals, the District
Court’s judgment denying a preliminary injunction to prohibit federal of-
ficials from transferring applicant from one federal detention facility to
another is denied. Applicant had been convicted of state offenses but
was cooperating with state and federal authorities by testifying in pend-
ing prosecutions, and was in federal custody in the witness protection
program. Although applicant may be correct in his assertion that the
risk to his safety will be increased if he is moved, there is no indication
that the officials responsible for the witness protection program will not
continue to provide him with protection under that program. In light of
the conclusions of the District Court and the Court of Appeals, which de-
nied an injunction pending appeal and a stay pending application to this
Court, that any increased risk to applicant does not rise to the level of
irreparable injury, his claims are insufficient to justify interference with
the Attorney General’s discretion to run the prison system and to trans-
fer applicant.
Justi ce Rehnquis t , Circuit Justice.
Applicant Arturo Beltran, a former member of the Nuestra
Familia criminal organization, is currently incarcerated in the
Metropolitan Correction Center in San Diego on the basis
of several criminal convictions in state courts. Because
Beltran is cooperating with state and federal authorities by
testifying in pending prosecutions, and because federal offi-
cials have determined that his cooperation has created a risk
to him, he is in federal custody in the witness protection pro-
gram. See 18 U. S. C. § 5003; Organized Crime Control Act
of 1970, Title V, §§501-503 of the Act of Oct. 15, 1970, Pub.
L. 91-452, 84 Stat. 933, note preceding 18 U. S. C. §3481.
In July 1982, federal officials decided to transfer Beltran to
another federal facility where he would remain in the witness
protection program. On July 20, Beltran filed a complaint
for declaratory relief and an application for a temporary re-
p. 1304straining order in the Southern District of California. The
District Court entered a temporary restraining order and
set a hearing for the next morning. Between July 22 and
July 30, the court held three hearings and received extensive
briefs.
Beltran contended in the District Court that he would be in
more danger at any other facility than at San Diego, in part
because he would have to return to California to testify and
the trips back and forth would be dangerous. He also
claimed that he was entitled to remain in San Diego under the
terms of his plea bargain with state officials. On July 30, the
District Court denied a preliminary injunction. It ruled
from the bench that Beltran had not demonstrated the requi-
site irreparable injury. Although there would be an added
danger from the additional movement that the transfer would
require, the court held that there was no indication that the
federal officials charged with his movement would not take
all necessary precautions, and that the added risk does not
rise to immediate irreparable harm.
Beltran appealed to the Court of Appeals and sought a stay
pending appeal. On July 30, the Court of Appeals granted a
temporary stay and ordered the Government to file a re-
sponse. On August 24, the Court of Appeals vacated its
temporary stay, denied a motion for an injunction pending
appeal, and denied a motion for a temporary stay pending
application to this Court. Beltran’s appeal from the denial of
the preliminary injunction remains pending in the Court of
Appeals.
Beltran has applied to me in my capacity as Circuit Justice
for an emergency stay while his appeal to the Court of Ap-
peals is pending. Beltran fears that he will be killed if he is
transferred. He states that there is no guarantee that a new
facility will offer him as much safety and security as his cur-
rent location. Finally, Beltran claims that part of his security
in his current location is based on his familiarity with prison
personnel and inmates and that once he is moved he will be
p. 1305unable to return to the Metropolitan Correction Center in
San Diego and enjoy the same degree of safety because the
prison’s population and personnel will change in the interim.
There is always a risk that Beltran will be attacked; this is
why he is in the witness protection program. Although
Beltran may be correct that that risk will be increased if he is
moved, there is no indication that the officials responsible for
the program will not continue to provide him with protection
under the terms of the program. Beltran has not submitted
to me any evidence sufficiently compelling to overcome the
conclusion of the courts below that any increased risk he may
bear does not rise to the level of irreparable injury. Indeed,
Beltran’s contentions are, in essence, that he is more com-
fortable and feels safer where he is than he would elsewhere.
The Attorney General has authority to transfer Beltran from
one facility to another in his discretion. 18 U. S. C.
§
4082(b). In the light of the conclusions of the District
Court and the Court of Appeals, Beltran’s claims are insuffi-
cient to justify me in interfering with the Attorney General’s
discretion to run the prison system. See generally Bell v.
Wolfish,
441 U. S. 520, 562 (1979).
For these reasons, the application is denied.