FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50006
Plaintiff-Appellee, D.C. Nos. 2:19-cr-00490-CAS-1 v. 2:19-cr-00490-CAS
PAUL FRANCISCO TORRES III, OPINION Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding
Argued and Submitted March 18, 2021 San Francisco, California
Before: Mary H. Murguia and Morgan Christen, Circuit Judges, and Barbara M. G. Lynn,* District Judge.
Opinion by Judge Murguia
MURGUIA, Circuit Judge:
This case raises traditional questions of statutory interpretation and due
process that have been complicated by the COVID-19 pandemic. We are asked to
* The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. determine the limits that federal law and the Constitution place on holding an
accused person in detention solely for the purpose of awaiting trial.
The questions presented in this action begin with the Sixth Amendment’s
guarantee of a “speedy and public trial.” U.S. Const. amend. VI. To effectuate the
Sixth Amendment right to a speedy trial, Congress enacted the Speedy Trial Act of
1974 (“Speedy Trial Act” or the “Act”). Pub. L. No. 93-619, 88 Stat. 2076 (1975).
The Speedy Trial Act sets three time limits to ensure timely prosecution of a criminal
action: (1) § 3161(b), which requires a defendant be charged with a crime within
thirty days of his arrest; (2) § 3161(c), which requires a defendant be tried within
seventy days of being charged with a crime; and (3) § 3164, which requires a
defendant who is detained solely for the purpose of awaiting trial be released if his
trial does not commence within ninety days of continuous detention. The most
commonly invoked provisions of the Speedy Trial Act are those that set the time
limits within which a defendant must be charged with a crime and brought to trial.
See 18 U.S.C. §§ 3161(b), (c). But at issue in this case is the provision regarding
defendants who are detained while awaiting trial. See id. § 3164.
To accommodate the need for flexibility in certain cases, specified periods of
delay may be excluded in computing time for purposes of each time limit set by the
Speedy Trial Act. Id. §§ 3161(h), 3164(b). The Speedy Trial Act provides an
enumerated list of delays that may toll the time periods set by the Act. This
2 enumerated list includes the so-called ends-of-justice provision, which excludes
“[a]ny period of delay” based on “findings that the ends of justice served” by the
delay “outweigh the best interest of the public and the defendant in a speedy trial.”
Id. § 3161(h)(7)(A) (emphasis added).
Paul Francisco Torres III has been detained awaiting trial since August 26,
2019. His trial has been delayed and his detention prolonged as a result of the district
court’s findings that the “ends of justice” served by avoiding the serious public
health risks presented by holding a trial during the COVID-19 pandemic outweighed
Torres’s right to a speedy trial. Torres now appeals the district court’s denial of his
motion for release from pretrial detention. Torres does not dispute that his trial was
rightfully delayed as a result of the COVID-19 pandemic pursuant to the ends-of-
justice provision. Instead, he argues that the district court erred in concluding that
because the ends of justice justified delaying his trial, the ends of justice necessarily
justified prolonging his pretrial detention. According to Torres, a continuance that
results in extending a defendant’s pretrial detention requires a “significantly
different” ends-of-justice analysis under the Speedy Trial Act. Alternatively, Torres
asserts that due process mandates his release because the length of his pretrial
detention exceeds the limits of what due process can tolerate.
We hold that Torres’s pretrial detention is consistent with the Speedy Trial
Act. This holding is two-fold. First, we conclude that because the plain text of
3 § 3161(h)(7) requires consideration of the best interest of the defendant in a speedy
trial, an ends-of-justice analysis will necessarily include consideration of whether
the defendant is detained. See United States v. Olsen, __ F.3d __, No. 20-50329, at
17–18 (9th Cir. 2021). Second, we conclude that § 3164(b) unambiguously provides
that time properly excluded under § 3161(h) is properly excluded from § 3164.
Because the record suggests that the district court considered Torres’s detention in
granting the ends-of-justice continuances here, Torres’s pretrial detention was
properly tolled under the Speedy Trial Act. We further conclude that due process
does not yet require Torres’s release, but observe that the length of Torres’s pretrial
detention is likely approaching the outer bounds of due process.
I. Factual and Procedural Background
On June 7, 2019, Torres was involved in a traffic stop. At the time of the stop,
Torres was subject to post-release supervision with conditions permitting a
warrantless search, and he had an outstanding arrest warrant for failing to report, in
violation of his probation. A search of Torres and his belongings revealed two
rounds of ammunition and approximately forty-six grams of methamphetamine.
Torres was taken to the police station, where he was Mirandized and subsequently
admitted to possessing the methamphetamine. Torres was indicted on federal
charges for possession with intent to distribute approximately forty-six grams of
methamphetamine, 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), and being a felon in
4 possession of ammunition, 18 U.S.C. § 922(g)(1). Prior to his arrest in this case,
Torres had been convicted of five felonies: possession of marijuana for sale in 2002,
assault with a deadly weapon in 2006, prisoner in possession of a weapon in 2007,
possession of a controlled substance in 2013, and possession of brass knuckles in
2015. As a result of Torres’s criminal history, he faces a mandatory minimum
sentence of five years if convicted. See 21 U.S.C. § 841(b)(1)(B)(viii).
Torres made his first appearance in court for the instant charges on August 26,
2019. Because Torres was charged with a controlled substance offense for which
the maximum term of imprisonment exceeded ten years, he was required under the
Bail Reform Act to rebut the presumption that no bail conditions would reasonably
assure his appearance at court hearings and the safety of the community. See 18
U.S.C. § 3142(e)(3)(A). The presiding magistrate judge found that Torres failed to
rebut the presumption. She reasoned that there was a high likelihood Torres would
fail to appear on account of his apparent substance abuse, and that his prior
convictions indicated a danger to the community if Torres were released. Torres
was ordered detained pending trial, which was set for October 22, 2019.
On October 3, 2019, the parties stipulated to continue the trial date to February
11, 2020, due to scheduling conflicts for Torres’s counsel. The district court granted
the continuance on October 4, 2019. On December 11, 2019, the parties again
stipulated to continue the trial date to April 7, 2020, due to additional scheduling
5 conflicts; the district court granted the stipulation the same day. The parties further
stipulated that the time from October 22, 2019, to April 7, 2020, was excludable time
pursuant to the “ends-of-justice” provision of Speedy Trial Act. See 18 U.S.C. §
3161(h)(7).
On March 13, 2020, in response to the COVID-19 pandemic, the Central
District of California issued a general order suspending jury selection and jury trials.
See C.D. Cal. General Order No. 20-02. A subsequent order—extending the
suspension of jury trials after a significant increase in COVID-19 infections,
hospitalizations, and deaths—reasoned that conducting jury trials would likely
“place prospective jurors, defendant[s], attorneys, and court personnel at
unnecessary risk. Therefore, . . . suspending criminal jury trials in the Central
District of California . . . serves the ends of justice and outweigh[s] the interests of
the public and the defendants in a speedy trial.” See C.D. Cal. General Order No.
20-09. The COVID-19 pandemic and related court closures have resulted in five
continuances of Torres’s trial. Torres did not oppose the first two, which together
continued Torres’s trial from April 7, 2020, to July 7, 2020. The district court also
found this time excludable pursuant to the ends-of-justice provision of the Speedy
Trial Act.
Torres did, however, oppose the next three continuances, which the
government sought on June 3, 2020, August 14, 2020, and October 20, 2020. The
6 district court granted each continuance, concluding that it could not summon jurors
into the courthouse to hold a trial pursuant to the general orders suspending jury
trials to prevent the spread of COVID-19. These three continuances—granted
pursuant to the Speedy Trial Act’s ends-of-justice provision—continued Torres’s
trial from July 7, 2020, to February 16, 2021. The district court has since granted
another continuance, over Torres’s objection, moving Torres’s trial date to May 25,
2021.
Torres began pursuing his release from pretrial detention in June 2020, after
the district court granted the third COVID-related continuance—which was the first
continuance Torres opposed. Torres received a detention-review hearing before the
Magistrate Judge in which Torres argued that he had a new surety to secure his
release under 18 U.S.C. § 3142(c) and that the intervening pandemic had resulted in
undue delay of his trial. The Magistrate Judge denied Torres’s request, reasoning
that although she “feel[s] for the defendant,” there was “just not enough change in
circumstances” to warrant overturning the court’s previous finding that the
presumption against release had not been overcome.
Torres requested that the district court review the Magistrate Judge’s ruling.
After hearing argument, the district court acknowledged that “Mr. Torres can’t be
detained forever just because we have the Corona virus,” but concluded that “the
defense has not met its burden to demonstrate that Mr. Torres is not a flight risk or
7 a danger to the community.” The district court denied Torres’s request for release.
Torres asked the district court to reconsider his detention in September 2020, arguing
that what constitutes excusable delay under the Speedy Trial Act’s ends-of-justice
provision for purposes of trial may not necessarily constitute excusable delay for
purposes of pretrial detention. The district again denied Torres’s request, reasoning
that its prior orders to continue Torres’s trial date under the ends-of-justice provision
also tolled the ninety-day clock on Torres’s pretrial detention under the express
terms of the Speedy Trial Act. The district court further noted that that the evidence
still supported finding Torres was a flight risk and posed a danger to the community.
Torres again moved for his release in November 2020, and the district court
denied Torres’s motion on January 7, 2021. Torres argued that he should be released
under the Speedy Trial Act because he had been in custody for more than ninety
days, even when all appropriate tolling was considered and, alternatively, because
the Due Process Clause independently prohibited his ongoing detention. Torres’s
first argument, pertaining to § 3164 in the Speedy Trial Act, contended that the
§ 3161(h)(7)(A) ends-of-justice analysis is different for purposes of § 3164, which
governs the presumptive ninety-day limit on pretrial detention, than for purposes of
§ 3161, which governs the presumptive seventy-day limit for commencing trial. The
district court declined to adopt this rationale. It noted that the Ninth Circuit has
already stated that time “properly excluded under the ‘ends of justice’ continuance
8 [is] also excluded from the [section 3164] calculation,” and that this conclusion was
supported by the text of the statute and its legislative history. The district court also
concluded that Torres’s then-sixteen-month detention did not offend due process,
reasoning that the government presented strong evidence that Torres was a flight risk
and posed a danger to the community. Torres filed an appeal pursuant to Federal
Rule of Appellate Procedure 9(a). We have jurisdiction pursuant to 18 U.S.C.
§ 3145(c) and 28 U.S.C. § 1291, and we affirm.
II. Standard of Review
“We review the district court’s interpretation and application of the Speedy
Trial Act de novo,” United States v. McCarns, 900 F.3d 1141, 1143 (9th Cir. 2018)
(internal citation and quotation marks omitted), but we review factual findings
supporting an “ends of justice” exclusion of time for clear error, United States v.
Ramirez-Cortez, 213 F.3d 1149, 1153 (9th Cir. 2000). We review de novo whether
a defendant’s due process rights were violated.1 United States v. Torres, 828 F.3d
1 The government contends that under United States v. Gasca-Ruiz, 852 F.3d 1167 (9th Cir. 2017) (en banc), the district court’s application of law to the facts should be reviewed for abuse of discretion. In Gasca-Ruiz, we held that “a district court’s application of the Sentencing Guidelines to the facts of a given case should be reviewed for abuse of discretion.” Id. at 1170. The government’s attempt to extend Gasca-Ruiz to hold that whenever this Court is reviewing another court’s application of law to facts the standard is abuse of discretion is not supported by our case law. The precedent in this Circuit instructs that alleged constitutional violations are reviewed de novo. See, e.g., United States v. Walker, 953 F.3d 577, 578 n.1 (9th Cir. 2020); see also Nordstrom v. Ryan, 856 F.3d 1265, 1269 (9th Cir. 2017) (explaining that “mixed questions of law and fact implicating constitutional rights” are reviewed de novo) (citation omitted).
9 1113, 1118 (9th Cir. 2016) (citing United States v. Ridgway, 300 F.3d 1153, 1155
(9th Cir. 2002)).
III. Analysis
Torres has been detained since August 2019 awaiting trial. While some of
this delay is attributable to Torres, the bulk of it is a result of the persisting COVID-
19 pandemic. Torres asks us to determine whether the Speedy Trial Act or the Due
Process Clause require his release, or in his words, “prohibit Torres’s lengthy,
ongoing, and indefinite detention.”2
A. Speedy Trial Act
1. Statutory Framework
Torres, like all criminal defendants, is presumed innocent until or unless he is
convicted of the charged offenses. Betterman v. Montana, 136 S. Ct. 1609, 1613–
14 (2016). “Reflecting the concern that a presumptively innocent person should not
languish under an unresolved charge, the Speedy Trial Clause [of the Sixth
Amendment] guarantees ‘the accused’ ‘the right to a speedy . . . trial.’” Id. at 1614
(emphasis in original) (quoting U.S. Const. amend. VI). “Congress passed the
2 The Central District issued a general order on April 15, 2021 explaining that jury trials will commence in the Western Division, where the presiding judge in this action sits, on June 7, 2021. (Doc. 25, Ex. A.). However, this movement towards trial does not moot the questions before us— (1) whether the district court erred in excluding time from the ninety-day detention clock, and (2) whether due process mandates Torres’s immediate release.
10 Speedy Trial Act of 1974 to give effect to the [S]ixth [A]mendment right.” Id. at
1616 (internal citations and quotation marks omitted).
Three provisions in the Speedy Trial Act impose time limits on the
prosecution of a criminal case. First, 18 U.S.C. § 3161(b) requires that an individual
be charged “within thirty days from the date on which such individual was arrested
or served with a summons in connection with such charges.” 18 U.S.C. § 3161(b)
(the “thirty-day charging clock”). Second, 18 U.S.C. § 3161(c) requires that the trial
of a defendant commence “within seventy days from the filing date (and making
public) of the information or indictment, or from the date the defendant has appeared
before a judicial officer . . . , whichever date last occurs.” Id. § 3161(c)(1) (the
“seventy-day trial clock”). If trial does not begin within the requisite time and the
defendant moves for dismissal prior to trial, the court must dismiss the indictment.
Id. § 3162(a)(2). Third, 18 U.S.C. § 3164(b) provides that the trial of any defendant
incarcerated awaiting trial “shall commence not later than ninety days following the
beginning of such continuous detention[.]” Id. § 3164(b) (the “ninety-day pretrial
detention clock”). Generally, courts must release any defendant from pretrial
detention after ninety days of detention. Id. § 3164(c).
Both the seventy-day trial clock and ninety-day pretrial detention clock may
be tolled by the causes for delay enumerated in 18 U.S.C. § 3161(h). Section 3161(h)
“includes a long and detailed list of periods of delay that are excluded in computing
11 the time within which trial must start.” Zedner v. United States, 547 U.S. 489, 497
(2006); see 18 U.S.C. § 3161(h). Relevant here is § 3161(h)(7), commonly referred
to as the “ends-of-justice” provision, which excludes “[a]ny period of delay resulting
from a continuance . . . if the judge granted such continuance on the basis of his
findings that the ends of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial.” Id. § 3161(h)(7)(A).
Section 3164(b) adds that “[t]he periods of delay enumerated in section 3161(h) are
excluded in computing the [ninety-day detention clock].” 18 U.S.C. § 3164(b). The
relationship of these tolling provisions is the focus of this inquiry.
2. Statutory Interpretation
Torres’s primary argument regarding the Speedy Trial Act is that the ends-of-
justice analysis required by § 3161(h)(7)(A) is “context-specific” and different when
applied to § 3164—the ninety-day pretrial detention clock—than for § 3161(c)—the
seventy-day trial clock. In other words, according to Torres, where the court finds
the ends of justice permit a trial continuance under § 3161, that finding should not
necessarily toll § 3164’s ninety-day limit on pretrial detention.3 The government
asserts, as the district court concluded, that the plain language of § 3164(b) does not
3 It bears repeating that Torres assumes on appeal that the district court’s continuances pursuant to § 3161(h)(7)(A), which excluded time for the purposes of the seventy-day trial clock, were proper. He argues only that they should not automatically apply under § 3164(b) to toll the ninety-day detention clock.
12 require a separate analysis. We agree with the government and we add that the plain
language of the § 3161(h)(7) ends-of-justice analysis necessarily includes
consideration of a defendant’s detained status.
Our interpretation of a statute begins with the statutory text, and unless
otherwise defined, terms are generally given their ordinary meaning. Sebelius v.
Cloer, 569 U.S. 369, 376 (2013). This case asks us to interpret several provisions
of the Speedy Trial Act. The first provision is § 3161(h), which provides for a
number of excludable delays.4 The specific “excludable delay” at issue is the ends-
of-justice exclusion, § 3161(h)(7), which provides that “[a]ny period of delay
resulting from a continuance granted by any judge . . . if the judge granted such
continuance on the basis of his findings that the ends of justice served by taking such
action outweigh the best interest of the public and the defendant in a speedy trial. .
. .” shall be excluded in computing the time within which the trial must commence.
Id. § 3161(h)(7)(A) (emphasis added). The last provision implicated here is
§ 3164(b), which provides, “[t]he periods of delay enumerated in section 3161(h)
are excluded in computing the time limitation” for pretrial detention.
4 These enumerated periods of delay include, among others: (1) delays resulting from other proceedings concerning the defendant; (2) delays during which prosecution is deferred pursuant to an agreement with the defendant; (3) delays resulting from the unavailability of the defendant or an essential witness; (4) delays resulting from the defendant’s mental incompetence or physical inability to stand trial; (5) delays when the government moves to dismiss an indictment and then files charges against the defendant for the same offense; and (6) “reasonable periods of delay” when the defendant is joined with a codefendant whose time for trial has not yet lapsed. 18 U.S.C. § 3161(h).
13 The government asserts that § 3164(b) plainly provides that exclusions of time
under § 3161(h)(7) are also excluded from the ninety-day detention clock in § 3164.
The district court agreed, relying on the text of § 3164(b) and our prior decision in
United States v. Lewis, 980 F.2d 555, 564 (9th Cir. 1992) to support its conclusion.
In Lewis, we stated that time properly excluded from § 3161(c) pursuant to the ends-
of-justice provision was also excluded from § 3164. See 980 F.2d at 564 (“In
calculating the 90 days, delays under § 3161(h) are excluded. Thus, the 41 days
properly excluded under the ‘ends of justice’ continuance are also excluded from the
calculation here.”) (internal citation omitted), abrogated on other grounds by Bloate
v. United States, 559 U.S. 196 (2010). And even though Lewis did not engage in a
reasoned statutory-construction analysis, having conducted that analysis here, we
reach the same result.5
First, we look to the text of § 3161(h)(7). When deciding whether a particular
delay may be excluded from the seventy-day period allowed for commencing trial,
the statute requires district courts to determine whether the ends of justice would be
served by delaying the trial. See § 3161(h)(7). Specifically, § 3161(h)(7) requires a
particularized analysis of whether the ends of justice served by the continuance
outweigh the best interests of the defendant in a speedy trial. Because the statute
5 See Estate of Saunders v. Comm’r of Internal Revenue, 745 F.3d 953, 960–61 (9th Cir. 2014) (“[I]n our circuit, statements made in passing, without analysis, are not binding precedent.”) (internal citations, alterations, and quotation marks omitted).
14 requires consideration of the defendant’s best interest in a speedy trial, we can
envision no circumstance in which a district court could properly fail to consider a
detained defendant’s status when addressing a motion to continue the trial. We do
not suggest the defendant’s detained status would be dispositive of a motion to
continue, but the statute requires a defendant’s pretrial detention be considered.
With that said, the statutory command of § 3164 is unambiguous—delays
excluded under the § 3161(h)(7) ends-of-justice provision are also excluded when
calculating the ninety-day detention clock. 6 Torres’s contention that “significantly
different ends-of-justice analyses apply to tolling of the trial and [pretrial] detention
limits” ignores the plain language of § 3164(b). We agree with Torres only to the
extent that he asserts the length of a defendant’s ongoing pretrial detention is critical
context when a district court conducts an ends-of-justice analysis, which as we just
explained expressly requires the district court to weigh “the interests of the defendant
in a speedy trial.” Where a defendant is detained, a § 3161 ends-of-justice analysis
6 When § 3164 was first enacted it did not include the provision in § 3164(b) incorporating the § 3161(h) tolling provisions. See Pub. L. No. 93-619, § 101, 88 Stat. at 2081. As a result, a circuit split arose as to whether the § 3161(h) tolling provisions applied to the ninety-day detention clock in § 3164—some courts permitted tolling while others, including this Court, held that detainees must be tried or released after ninety days of continuous detention. See United States v. Tirasso, 532 F.2d 1298, 1300 (9th Cir. 1976); see also United States v. Corley, 548 F.2d 1043, 1044 (D.C. Cir. 1976). To resolve the split, Congress amended § 3164 to include the language: “The periods of delay enumerated in section 3161(h) are excluded in computing the time limitation specified in this section.” 18 U.S.C. 3164(b); Speedy Trial Act Amendments of 1979, Pub. L. No. 96-43, 93 Stat. 327, 329. Therefore, the plain language of § 3164(b) is pertinent to this appeal. The text of the ends-of-justice provision cannot be viewed in isolation.
15 includes consideration of the defendant’s detained status, but nothing suggests that
a defendant’s detained status is considered differently when an ends-of-justice
continuance is applied to § 3164.
Torres argues that the application of § 3164(b) in Lewis, and advanced by the
government here, leads to absurd and unconstitutional results.7 See United States v.
Gallegos, 613 F.3d 1211, 1214 (9th Cir. 2010) (“If the plain language of a statute
renders its meaning reasonably clear, [we] will not investigate further unless its
application leads to unreasonable or impracticable results.”) (emphasis added)
(citation and quotation marks omitted). Torres first points to the canon against
absurd results and highlights that the government has thirty days to file an indictment
after a defendant’s arrest and seventy days to bring him to trial after the indictment.
18 U.S.C. §§ 3161(b), (c)(1). Separately, the trial of a continuously incarcerated
defendant must begin within ninety days or he must be released on bail. Id.
§ 3164(b). Therefore, if § 3161(h)’s tolling provisions always apply in exactly the
same way to the thirty-day charging clock, the seventy-day trial clock, and the
ninety-day detention clock, then for a defendant who is detained from the day of his
arrest, the only benefit of § 3164 is that he might be released ten days before his trial,
7 Torres also argues that the legislative history of § 3164(b) supports his argument. However, because we do not find the plain text of § 3164(b) to be ambiguous, we need not consult the legislative history. See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1750 (2020) (“[L]egislative history can never defeat unambiguous statutory text.”); Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) (“Even [courts] who sometimes consult legislative history will never allow it to be used to ‘muddy’ the meaning of ‘clear statutory language.’”) (citation omitted).
16 assuming the government takes the maximum amount of time to charge and try him.8
Torres argues this “trivial” benefit constitutes an absurd result.
The government acknowledges that § 3164 “may be largely vestigial and
rarely invoked,” but a trivial benefit is still a benefit and the absurdity canon is an
extremely high bar. In re Hokulani Square, Inc., 776 F.3d 1083, 1088 (9th Cir. 2015)
(“The absurdity canon . . . is confined to situations where it is quite impossible that
Congress could have intended the result . . . and where the alleged absurdity is so
clear as to be obvious to most anyone.”) (emphasis added) (internal citation and
quotation marks omitted); see also Crooks v. Harrelson, 282 U.S. 55, 60 (1930)
(“[T]o justify a departure from the letter of the law upon [the absurdity] ground, the
absurdity must be so gross as to shock the general moral or common sense” and
“there must be something to make plain the intent of Congress that the letter of the
statute is not to prevail.”). Our interpretation of § 3164 does not lead to absurd
results.
Torres next relies on the canon of constitutional avoidance, which requires a
court to construe an ambiguous statute in a manner that avoids serious questions
about its constitutionality. United States v. Davis, 139 S. Ct. 2319, 2332 n.6 (2019).
8 This result is reached by adding the thirty-day charging clock and the seventy-trial clock, to reach a combined period of one hundred days to bring a defendant to trial. When the one hundred days is compared to the ninety-day detention clock, the defendant is released only ten days before his trial, as Torres contends.
17 But this canon applies only “when, after the application of ordinary textual analysis,
the statute is found to be susceptible of more than one construction, [one
constitutional and one not]; and the canon functions as a means of choosing between
them.” See Clark v. Martinez, 543 U.S. 371, 385 (2005) (emphasis in original). The
relevant provisions of the Speedy Trial Act are not susceptible to an unconstitutional
interpretation. To be clear, the dispute here concerns whether the Speedy Trial
Act—particularly § 3161(h)(7)(A) and § 3164(b)—requires a district court to engage
in a separate ends-of-justice analysis before excluding time from the ninety-day
detention clock. Prolonged pretrial detention may raise constitutional concerns, but
Torres does not argue that an ends-of-justice inquiry tailored uniquely toward
extending his time in pretrial detention would result in his release or even more
generally resolve the constitutional questions he raises. Accordingly, the canon of
constitutional avoidance is not applicable here. See Almendarez-Torres v. United
States, 523 U.S. 224, 238–39 (1998) (explaining that a court need not apply the
doctrine of constitutional avoidance where the court does not gravely doubt that the
statute is constitutional even if the statute poses a significant constitutional question).
Torres’s best authority that a separate ends-of-justice analysis is required to
exclude time under § 3164(b) is the Tenth Circuit’s decision in United States v.
Theron, 782 F.2d 1510 (10th Cir. 1986). In Theron, the defendant was indicted
along with eleven others on sixty-four counts of conspiracy and mail fraud. Id. at
18 1511. Theron was deemed a flight risk and held without bail while his ten
codefendants were released. Id. The district court granted an eight-month ends-of-
justice continuance requested by Theron’s codefendants, but opposed by Theron,
due to the case’s complexity and need for time to prepare a defense. Id. Theron
sought release pending trial, citing § 3164. Id. at 1512.
The Tenth Circuit concluded that the delay due to the continuance was
excludable for purposes of the seventy-day trial clock under the § 3161(h) provision
excluding “[a] reasonable period of delay when the defendant is joined for trial with
a codefendant as to whom the time for trial has not run and no motion for severance
has been granted.” Id. at 1514 (quoting 18 U.S.C. § 3161(h)(6)).9 But the Tenth
Circuit further suggested that “the ‘reasonable delay’ exclusion . . . has a different
meaning and application under § 3164 than under § 3161, because of the different
context in which it arises.” Id. at 1516. The Tenth Circuit reasoned:
What might be a reasonable delay to accommodate conservation of public resources by trying codefendants together as an exception to the Speedy Trial Act’s seventy-day limit might become unreasonable when a defendant is incarcerated for more than ninety days without a chance to make bail. Thus it is possible, as here, that subsection (h)[(6)] will not require dismissal of the indictment but will require that the defendant be tried or released.
9 Theron addressed an earlier version of the statute in which the ends-of-justice provision was located at § 3161(h)(8), as opposed to its current position at § 3161(h)(7). Similarly, in Theron, the provision permitting a reasonable delay for cases involving codefendants was formerly § 3161(h)(7) but is now § 3161(h)(6).
19 Id. The Tenth Circuit also noted that if it “did not construe the statute to require
release or trial sooner than the dates the trial court ha[d] set,” Theron’s continued
detention would present serious constitutional questions, and “[t]here is a strong
preference for construing a statute to avoid constitutional questions.” Id. (citing
United States v. Clark, 445 U.S. 23, 27 (1980)). Accordingly, determining that
Theron’s pretrial detention was “too long,” the Tenth Circuit ordered that Theron
“be released on bond with other appropriate restrictions or tried within the next thirty
days.” Id. at 1516–17.
Torres asserts that Theron supports his view that the ends-of-justice provision
in § 3161(h)(7) is inherently context-specific, because what satisfies the “ends of
justice” is different when the issue is whether the trial should be postponed versus
whether the defendant should remain in custody while the trial is delayed. But
because we agree that a defendant’s detained status may influence the ends-of-
justice analysis under § 3161(h)(7), neither the result nor the reasoning of Theron is
inconsistent with the result we reach today. Under our read of the statute, if two
defendants’ trials are joined and either of them is in pretrial detention, that fact must
be considered when deciding whether the ends of justice support a continuance.
There is no need for “a different meaning and application” of the ends-of-justice
provision under § 3164. In short, Theron’s consideration of an entirely different
20 excludable delay, applicable only in multi-defendant actions, does not inform our
analysis.
At bottom, the text of § 3164(b) requires that time excluded under § 3161(h)
is excluded for purposes of § 3164. Our court and others have interpreted § 3164(b)
to mean what it says. See Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019) (“We must
presume that Congress says in a statute what it means and means in a statute what it
says there.”) (internal quotation marks and citation omitted). We find no reason to
deviate from the plain text of the statute by holding that § 3164(b) requires a different
analysis before time excluded under § 3161(h)(7) is excluded under § 3164(b).
Moreover, in light of our holding that § 3161(h)(7) requires a district court to
consider a defendant’s detained status in weighing the ends of justice, it is not clear
what more a district court would need to consider if Torres’s proposed separate
analysis was required. To be sure, Torres failed to articulate what more he believes
the district court should have considered in making its ends-of-justice findings
here.10
Accordingly, we conclude that the district court’s orders continuing Torres’s
trial date under 18 U.S.C. § 3161(h)(7) necessarily accounted for his pretrial
10 To the extent Torres argues the district court failed to consider his pretrial detention status when it decided that Torres’s time in detention was excluded based on § 3161(h)(7)(A), that argument is unsupported by the record. The district court was well aware of Torres’ detention status, having previously denied Torres’s request for release. There is no indication that the district court failed to consider Torres’s interest in being free from prolonged pretrial detention when it considered whether the ends of justice justified a continuance.
21 detention and excluded time from the ninety-day detention clock in § 3164 by virtue
of § 3164(b). When proper tolling is considered, Torres has not yet been in pretrial
detention for a period longer than ninety days. The Speedy Trial Act, therefore, does
not require Torres to be released at this time.
To be sure, the Speedy Trial Act is not foolproof protection against prolonged
pretrial detention. See United States v. Accetturo, 783 F.2d 382, 387–88 (3d Cir.
1986) (explaining that due to excludable time “the Speedy Trial Act might not work
perfectly well to protect against lengthy incarceration,” therefore, in some situations
“the length of the defendant’s pretrial detention might not survive a proper due
process challenge”) (internal quotation marks and citation omitted). As Torres
himself illustrates, there are other remedies on which a defendant in Torres’s
position may rely. The first is a defendant’s right to seek revocation of his pretrial
detention at any time. See 18 U.S.C. § 3145(b). The second is due process, which
as explained below prevents unconstitutionally lengthy pretrial detention.
B. Due Process
It is undisputed that at some point, pretrial detention can “become excessively
prolonged, and therefore punitive,” resulting in a due process violation. United
States v. Salerno, 481 U.S. 739, 747 n.4 (1987). The point at which detention
constitutes a due process violation requires a case-by-case analysis. United States
v. Gelfuso, 838 F.2d 358, 359–60 (9th Cir. 1988) (adopting case-by-case analysis
22 and declining to express a “view as to the point at which detention in a particular
case might become excessively prolonged and violate due process”). A due process
violation occurs when detention becomes punitive rather than regulatory, meaning
there is no regulatory purpose that can rationally be assigned to the detention or the
detention appears excessive in relation to its regulatory purpose. Salerno, 481 U.S.
at 747 (citation omitted). The only Ninth Circuit case law we have for guidance on
this issue is Gelfuso, in which we looked to “the length of confinement in
conjunction with the extent to which the prosecution bears responsibility for the
delay that has ensued.” 838 F.2d at 359. Other courts, including the district court
in this case, have also considered the strength of the evidence justifying detention
under the Bail Reform Act, which we find appropriate. See, e.g., United States v.
Briggs, 697 F.3d 98, 101 (2d Cir. 2012); United States v. Zannino, 798 F.2d 544,
547–48 (1st Cir. 1986) (per curiam); Accetturo, 783 F.2d at 388. Therefore, in
evaluating whether a due process violation has occurred, we weigh the following
factors: (1) the length of the defendant’s pretrial detention; (2) the prosecution’s
contribution to the delay; and (3) the evidence supporting detention under the Bail
Reform Act.
1. Length of Defendant’s Pretrial Detention
Torres has been detained since August 26, 2019, and his trial is currently set
for May 25, 2021. Assuming his trial begins in May 2021, he will have been
23 detained for twenty-one months. This lengthy detention has been prolonged over
Torres’s consistent objection, asserted for the first time over one year ago, and his
persistent requests to be released with appropriate conditions. The government
conceded at oral argument that the length of Torres’s pretrial detention weighs in
favor of recognizing a due process violation. We agree. See United States v. Myers,
930 F.3d 1113, 1119 (9th Cir. 2019) (explaining that “delays approaching one year
are presumptively prejudicial” for Sixth Amendment purposes) (citation omitted);
see also United States v. Gonzales Claudio, 806 F.2d 334, 340–41 (2d Cir. 1986)
(describing the ninety-day period as a “point of reference in our consideration of the
constitutional limit on such detention”).
2. Prosecution’s Contribution to Delay
Gelfuso instructs that we must also consider “the extent to which the
prosecution bears responsibility for the delay that has ensued.” 838 F.2d at 359.
Torres does not dispute that the prosecution bears no responsibility for the delay in
his case. The first two continuances were stipulated to for the benefit of Torres’s
counsel to adequately prepare his case and the remainder of the continuances were
a direct result of the COVID-19 pandemic.11 This factor weighs against finding a
due process violation.
11 Torres briefly contends that in the event this court determined in United States v. Olsen, __ F.3d __, No. 20-50329 (9th Cir. 2021) that the Central District “knowingly and willfully” made “a
24 3. Evidence Supporting Detention under Bail Reform Act
In addition to the length of detention and the fault of the prosecution, many of
our sister circuits and district courts within this Circuit also consider the strength of
the evidence supporting the defendant’s detention under the Bail Reform Act factors
set forth in 18 U.S.C. § 3142(g). See, e.g., United States v. Ailemen, 165 F.R.D. 571,
581 (N.D. Cal. 1996) (collecting cases). We agree these factors are instructive.12
They include:
(1) the nature and circumstances of the offense charged . . .; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including—[as relevant here] the person’s . . . history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and . . . whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release. . . .
18 U.S.C. § 3142(g).
Here, the district court consistently found that Torres has a documented
history of substance abuse, clear access to ammunition, a significant criminal history
substantive policy decision to suspend the constitutional rights of . . . every . . . defendant unwilling to waive time,” then this factor should weigh in favor of Torres. See United States v. Infelise, 934 F.2d 103, 104–05 (7th Cir. 1991) (explaining that the defendant “must show that either the prosecution or the court has unnecessarily delayed in bringing the case to trial”) (emphasis added). This Court did not reach such a conclusion in Olsen and therefore need not determine the relevance court-caused delays have in the due process inquiry. 12 We do not read Gelfuso to hold that the two factors mentioned—length of delay and prosecution’s fault—are the only factors that may be considered in this due process analysis.
25 including violent offenses, and a history of failing to appear. These findings,
coupled with the strength of the government’s case in light of Torres’s Mirandized
confession, and the seriousness of Torres’s current charges, support the conclusion
that the Bail Reform Act factors weigh strongly against a due process violation.
Torres all but concedes this assessment of the Bail Reform Act factors is correct.
4. Balance of Factors
On balance, we conclude that Torres’s twenty-one-month detention does not
yet violate due process, but we caution that the length of Torres’s detention is
approaching the limits of what due process can tolerate. The length of Torres’s
pretrial detention is significant under any metric and is deeply troubling. But the
lack of any prosecutorial contribution to the delay and the strength of the evidence
supporting Torres’s detention lead us to conclude that Torres’s detention is rationally
connected to a regulatory purpose—preventing danger to the community and
ensuring Torres will appear as required. See Salerno, 481 U.S. at 747 (noting that
“preventing danger to the community” is a regulatory interest supporting pretrial
detention under the Bail Reform Act); see also United States v. Millan, 4 F.3d 1038,
1043–44 (2d Cir. 1993) (including assurance that a defendant will not flee before
trial as a regulatory interest supporting pretrial detention). However, all parties agree
that at some point, regardless of the risks associated with Torres’s release, due
process will require that he be released if not tried. See Briggs, 697 F.3d at 103
26 (“There is no bright-line limit on the length of detention that applies in all
circumstances; but for every of set of circumstances, due process does impose some
limit.”). And if Torres is not tried by his current trial date of May 25, 2021, the
district court and the prosecution must consider whether further prolonging Torres’s
pretrial detention crosses the line from regulatory to punitive detention.
IV. Conclusion
We affirm the district court’s conclusion that time properly excluded under
the § 3161(h)(7)(A) ends-of-justice provision is expressly excluded from the ninety-
day detention clock in § 3164 pursuant to § 3164(b). Because the ends-of-justice
provision under § 3161(h)(7) requires consideration of the defendant’s interest in a
speedy trial, a detained defendant’s status must be considered before a continuance
of trial is granted. Accordingly, once a district court properly excludes time from
the trial clock under the ends-of-justice provision, that exclusion applies to the
detention clock as well. The plain language of § 3161(h)(7) and § 3164(b) support
this conclusion.
We also affirm the district court’s conclusion that Torres’s detention does not,
at this time, violate due process. Our decision to uphold the district court’s ruling,
however, is not made lightly. Because of the troubling length of Torres’s pretrial
detention, due process demands that the district court begin Torres’s trial or
reconsider bail subject to appropriate conditions very soon.
27 AFFIRMED.