                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                November 13, 2008
                            FOR THE TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                        No. 08-2223
    v.                                        (D.C. No. 1:05-CR-01849-JCH-1)
                                                          (D. N.M.)
    DANA JARVIS,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before O’BRIEN, EBEL, and TYMKOVICH, Circuit Judges.



         Dana Jarvis faces numerous criminal charges in a complex, multi-defendant

case pending in the district court. He sought to be released from pretrial

detention on the ground that his detention, which has now exceeded three years,

has become so protracted as to violate his rights under the Due Process Clause of

the Fifth Amendment to the United States Constitution. The district court denied



*
       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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
his motion; he appealed. We have jurisdiction under 18 U.S.C. § 3145 and

28 U.S.C. § 1291.

      Jarvis did not seek statutory relief under Bail Reform Act of 1984,

18 U.S.C. §§ 3141-3156, or the Speedy Trial Act of 1974, 18 U.S.C. §§

3161-3174. Nor did he raise a Sixth Amendment speedy trial issue. Instead he

made only a due process argument. Thus, we do not have the benefit of the

district court’s statutory or Sixth Amendment analysis. The Supreme Court left

open the question of whether a substantive due process right to pre-trial release

not authorized by statute exists simply because of the passage of time. We

decline to plow new ground under the Due Process Clause until there is no

alternative. Accordingly, we vacate the district court’s decision and remand for a

disciplined statutory and Sixth Amendment analysis, should such be requested,

before addressing the due process issue. We decline Jarvis’s request to assign the

matter to a new district court judge.

                                         I.

      Jarvis was arrested on August 25, 2005, after being indicted on charges of

conspiracy to distribute 1,000 kilograms or more of marijuana in violation of

21 U.S.C. § 846, engaging in a continuing criminal enterprise in violation of

21 U.S.C. § 848, and money laundering in violation of 18 U.S.C. § 1956. He had

his initial appearance on August 26, and on August 29, the magistrate judge

conducted an arraignment and detention hearing.

                                         -2-
      The Bail Reform Act provides that a defendant shall be detained pending

trial if a “judicial officer finds that no condition or combination of conditions will

reasonably assure the appearance of the person as required and the safety of any

other person and the community.” 18 U.S.C. § 3142(e). Section 3142(e) further

establishes a rebuttable presumption in cases involving particularly serious

charges that no conditions or combinations of conditions will be sufficient to

allow release pending trial. Id. The magistrate judge found there were risks that

Jarvis would not appear and that he would endanger the safety of another person

or the community if released and found he had not rebutted the rebuttable

presumption. Accordingly, the magistrate judge ordered Jarvis detained. Jarvis

did not appeal to the district court or to this court. See 18 U.S.C. § 3145 (setting

forth process for appealing detention decisions).

      In mid-October, 2005, Jarvis filed a motion for release on conditions. On

November 7, 2005, the magistrate judge held a bail review hearing. After

considering the exhibits and testimony presented, the magistrate judge again

concluded Jarvis had not rebutted the rebuttable presumption. Particularly, the

magistrate judge found Jarvis to be a flight risk (by a preponderance of the

evidence) and he presented a danger to the community if released (by clear and

convincing evidence). The court determined “no condition or combination of

conditions will reasonably assure the appearance of defendant at Court

proceedings as required, or, reasonably assure the safety of others and the

                                          -3-
community.” R. Doc. 248 at 1. Accordingly, the magistrate judge denied the

motion for release. Jarvis did not seek review from the district court or this court,

so the detention order remained in effect.

      For various reasons, the proceedings before the district court have been

protracted. Most recently, the trial was continued to March 23, 2009, due at least

in part to several defense attorneys’ scheduling conflicts. In July 2008, Jarvis

again moved for release. He did not seek relief under the Bail Reform Act, which

provides for a reopening of the release/detention hearing if there is new evidence

materially bearing on whether conditions of release will reasonably assure

appearance at trial and the safety of other people and the community. 18 U.S.C.

§ 3142(f). He essentially claimed the passage of time, alone, required his release

under the Due Process Clause. The district court proceeded in accord with our

unpublished decision in United States v. Cos, 198 F. App’x 727, 732 (10th Cir.

2006) (per curiam), which this court remanded for the district court to consider

whether an extended pretrial detention violated the Due Process Clause. Cos

identified three relevant factors: “1) the length of detention; 2) the extent of the

prosecution’s responsibility for the delay of trial; and 3) the strength of the

evidence upon which the detention was based.” Id. Having analyzed the Cos

factors, the district court decided Jarvis’s continued detention did not violate the

Due Process Clause and denied his release motion. From that order Jarvis

appeals. The government has filed a brief in opposition.

                                          -4-
                                          II.

      Our review of the district court’s detention decision is de novo, although

we defer to the district court’s factual findings. See United States v. Stricklin,

932 F.2d 1353, 1355 (10th Cir. 1991) (per curiam) (“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.”).

      “[U]nder the Due Process Clause, a detainee may not be punished prior to

an adjudication of guilt in accordance with due process of law.” Bell v. Wolfish,

441 U.S. 520, 535 (1979). In United States v. Salerno, the Supreme Court

concluded “that the pretrial detention contemplated by the Bail Reform Act is

regulatory in nature, and does not constitute punishment before trial in violation

of the Due Process Clause.” 481 U.S. 739, 748 (1987). One of the factors on

which the Salerno Court relied in reaching its decision is that “the maximum

length of pretrial detention is limited by the stringent time limitations of the

Speedy Trial Act [of 1974, 18 U.S.C. §§ 3161-3174].” Id. at 747. 1 Because

Jarvis has not tested whether statutory or Sixth Amendment remedies would

afford relief his due-process challenge is premature.

      It is “a fundamental rule of judicial restraint” that “[p]rior to reaching any

constitutional questions, federal courts must consider nonconstitutional grounds

1
      In Salerno, the Court “intimate[d] no view as to the point at which
detention in a particular case might become excessively prolonged, and therefore
punitive, in relation to Congress’ regulatory goal.” 481 U.S. at 747 n.4.

                                          -5-
for decision.” Jean v. Nelson, 472 U.S. 846, 854 (1985) (citations and quotations

omitted). Jarvis has at least one available nonconstitutional remedy – the Bail

Reform Act – that may end his pretrial detention. The Bail Reform Act provides a

means of reopening a bail hearing “at any time before trial” upon a showing of

material new evidence. 18 U.S.C. § 3142(f). And the Bail Reform Act may

require pretrial release on conditions even in circumstances in which continued

detention is not unconstitutional. See United States v. Infelise, 934 F.2d 103, 105

(7th Cir. 1991).

      Further, in some circumstances, the Speedy Trial Act explicitly provides

for automatic review of detention. See 18 U.S.C. § 3164(c). Even where section

3164 is inapplicable, the Speedy Trial Act may provide relief where ending a

protracted pretrial detention is a primary concern of a defendant, either through

an order requiring trial to commence or bail to be granted, see United States v.

Theron, 782 F.2d 1510, 1516-17 (10th Cir. 1986), or through an outright

dismissal of the charges, see 18 U.S.C. § 3162(a)(2); United States v.

Abdush-Shakur, 465 F.3d 458, 462 (10th Cir. 2006), cert. denied, 127 S. Ct. 1321

(2007).

      Another factor that favors allowing district courts the opportunity to

consider nonconstitutional forms of relief in the first instance is that Jarvis’s

motion is grounded in substantive due process. See Salerno, 481 U.S. at 746

(analyzing the facial constitutionality of the Bail Reform Act under substantive

                                          -6-
due process). “The history of substantive due process counsels caution and

restraint.” Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229 (1985)

(Powell, J., concurring) (quotation omitted).

      [T]he Court has always been reluctant to expand the concept of
      substantive due process because guideposts for responsible
      decisionmaking in this unchartered area are scarce and open-ended.
      The doctrine of judicial self-restraint requires us to exercise the
      utmost care whenever we are asked to break new ground in this field.

Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). “Exercis[ing]

utmost care” logically includes evaluating less drastic forms of relief before

reaching substantive due process.

      The Supreme Court also has indicated a preference for proceeding under

more specific constitutional rights before resorting to substantive due process.

See Graham v. Connor, 490 U.S. 386, 395 (1989) (holding that Fourth

Amendment standards, not substantive due process, should be applied in cases

involving excessive force during a law enforcement “seizure”). In this regard, in

contrast to Salerno, which deferred the question of when due process might come

into play with regard to extended pretrial detentions, see 481 U.S. at 747 n.4, the

Supreme Court has established a balancing test for evaluating deprivations of the

Sixth Amendment right to a speedy trial, see Barker v. Wingo, 407 U.S. 514, 530

(1972). We recognize that defendants may have reasons for preferring not to

invoke their Sixth Amendment right, see id. at 521, and that demanding a speedy

(or at least speedier) trial under the Constitution does not precisely redress the

                                          -7-
fact of pretrial detention, since the defendant may still remain in custody. But

invoking the Sixth Amendment right may shorten the duration of pretrial

detention, if that is of primary concern to a defendant, and thus the Sixth

Amendment right to a speedy trial may also be a source of relief in appropriate

circumstances.

      Other courts have adopted particular tests for analyzing protracted pretrial

detentions under the Due Process Clause. See, e.g., United States v. Millan,

4 F.3d 1038, 1043 (2d Cir. 1993) (“To determine whether the length of pretrial

detention has become constitutionally excessive, we must weigh three factors:

(I) the length of detention; (ii) the extent of the prosecution’s responsibility for

the delay of the trial; and (iii) the strength of the evidence upon which the

detention was based[.]” (quotation omitted)); United States v. Accetturo, 783 F.2d

382, 388 (3d Cir. 1986) (listing appropriate factors to consider). In unpublished,

nonbinding decisions, this court has approved the Second Circuit’s three-factor

test either explicitly, see Cos, 198 F. App’x at 732, or implicitly, see United

States v. Peters, No. 94-2107, 1994 WL 325419, at * 1 (10th Cir. July 7, 1994).

We need not decide today whether these tests appropriately determine when a

protracted pretrial detention becomes “punishment.” We note, however, that any

record created as a result of analyzing challenges under the Bail Reform Act, the

Speedy Trial Act, and/or the Sixth Amendment right to a speedy trial inevitably

would inform a due-process analysis.

                                          -8-
      Finally, we emphasize that we are neither instituting an exhaustion

requirement for due-process claims regarding extended pretrial detention nor

requiring defendants to bring their challenges separately and serially. Defendants

may choose to present a due process claim in addition to claims under the Bail

Reform Act, the Speedy Trial Act, and/or the Sixth Amendment right to a speedy

trial, as appropriate, and the district court may consider the narrowest grounds of

relief first. We simply hold that, where established nonconstitutional and

constitutional remedies exist, defendants should not force the district court into a

substantive due process analysis without also allowing it to evaluate more

restrained means of granting relief.

                                          III.

      Jarvis also requests that his matter be assigned to a new district court judge.

This court exercises its power to assign a new judge when (1) there is evidence of

actual bias or prejudice against the party or (2) on the basis of a three-part test:

      (1) whether the original judge would reasonably be expected upon
      remand to have substantial difficulty in putting out of his or her mind
      previously-expressed views or findings determined to be erroneous or
      based on evidence that must be rejected, (2) whether reassignment is
      advisable to preserve the appearance of justice, and (3) whether
      reassignment would entail waste and duplication out of proportion to
      any gain in preserving the appearance of fairness.

Mitchell v. Maynard, 80 F.3d 1433, 1450 (10th Cir. 1996) (quotation omitted).

Jarvis does not allege that the district judge harbors personal bias against him, but

instead relies on the three-part test. We do not agree that the district judge

                                           -9-
appears to have had difficulty putting out of her mind this court’s reversal of one

of her previous rulings or that reassignment would be necessary to preserve the

appearance of justice. Moreover, in this complicated, multi-defendant case with

numerous pending issues, “reassignment would entail waste and duplication out

of proportion to any gain” that would be realized. Id. (quotation omitted).

Accordingly, we deny the request for reassignment to a new district judge.

                                         IV.

      Jarvis’s motion for release under the Due Process Clause did not adequately

allow the district court to consider other avenues of relief before relying on

substantive due process. Accordingly, we decline to consider his appeal of the

denial of that motion at this time, vacate the district court’s decision, and remand

to allow Jarvis the opportunity to pursue narrower grounds for relief in the first

instance.

                                                Entered for the Court,



                                                Terrence L. O’Brien
                                                Circuit Judge




                                         -10-
