                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        March 10, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                           No. 15-3004
v.                                              (D.C. No. 5:13-CR-40060-DDC-12)
                                                             (D. Kan.)
WALTER BERNARD TAYLOR,

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.



      Walter Bernard Taylor appeals from the district court’s order requiring that he

be detained pending trial. He argues that his detention violates his rights to a speedy

trial and to due process. Exercising jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3145(c), we affirm.




*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                   BACKGROUND

      Along with several other persons, Mr. Taylor is charged with conspiracy to

distribute more than 280 grams of cocaine in violation of 21 U.S.C. § 846. After a

detention hearing in early October 2013, the magistrate judge decided that Mr. Taylor

should be detained pending trial. The magistrate judge found by a preponderance of

the evidence that no condition or combination of conditions for pretrial release would

assure his appearance at trial and by clear and convincing evidence that no condition

or combination of conditions would assure the safety of others or the community if

he were released. See 18 U.S.C. § 3142(e), (f). Also, the magistrate judge

recognized that there was a rebuttable presumption of detention because Mr. Taylor

faces a term of imprisonment of ten years or more as his charge arises under the

Controlled Substances Act. See id. § 3142(e)(3)(A). In addition, the magistrate

judge found that the government has a strong case against Mr. Taylor, he is

unemployed, he does not have substantial financial resources, he has prior felony

drug convictions, and he has a significant prior criminal record. See id. § 3142(g)

(requiring judicial officer to consider “(1) the nature and circumstances of the offense

charged, including whether the offense . . . involves . . . a controlled substance”;

“(2) the weight of the evidence against the person; (3) the history and characteristics

of the person, including” defendant’s “character, . . . family ties, employment,

financial resources, . . . [and] criminal history”; and “(4) the nature and seriousness

of the danger to any person or the community that would be posed by the person’s


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release”). After holding another hearing, the district court rejected Mr. Taylor’s

request to revoke the detention order.

      Extensive pre-trial proceedings followed. Mr. Taylor filed several motions, or

joined in motions filed by his co-defendants, including motions to designate the case

as complex and toll a speedy trial, to sever co-defendants, to strike his alias from the

indictment, for a pretrial hearing, for discovery, and to suppress wiretap evidence on

three occasions.

      On the last day permitted by the court’s scheduling order, Mr. Taylor and his

co-defendants moved to suppress wiretap evidence obtained by the government that

was outside the jurisdiction of the state court judge, who authorized the wiretap. The

district court granted the motion in part. This ruling resulted in further litigation

concerning the government’s need to obtain information to determine what wiretap

evidence was jurisdictionally admissible.

      On September 30, the government requested a continuance of the October 28,

2014, trial date to allow time to obtain and review wiretap information. The court

granted a continuance and rescheduled the trial for June 1, 2015. In doing so, the

court determined that the ends of justice outweighed the speedy-trial interests of

Mr. Taylor and the public, because Mr. Taylor and his co-defendants had delayed

filing the motion to suppress; the case is complex and unusual and presents a novel

issue; and the government needs time to prepare for trial. See id. § 3161(h)(7)(B)

(listing factors to consider before granting continuance). Thus, the court decided that


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the delay between October 28, 2014, and June 1, 2015, is excludable from the

speedy-trial calculation.

      After the court granted the continuance, Mr. Taylor moved to reopen the

detention order under 18 U.S.C. § 3142(f) based on new information concerning the

length of his detention and under 18 U.S.C. § 3164(b) for violation of his right to a

speedy trial. The magistrate judge denied the motion. Subsequently, the district

court denied Mr. Taylor’s second motion for revocation of the detention order.

Noting there was not even a close question, the court stated that detention was

appropriate because Mr. Taylor was unemployed, lacked financial resources, had an

extensive criminal record of felony drug convictions, and the current charges carried

a presumption of detention. The court found that there was no condition or

combination of conditions of release that would assure Mr. Taylor’s appearance at

trial and no condition or combination of conditions that would assure the safety of

others or the community if he were released. Also, the court determined that the

interests of justice served by the continuance outweighed Mr. Taylor’s interest in a

speedy trial and that his due process rights were not violated in light of his decisions

to file numerous pretrial motions. This appeal followed.

                                      ANALYSIS

I. Review Standards

      Deciding if the district court erred in denying pretrial release “involves

questions of fact and mixed questions of law and fact. We apply de novo review to


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mixed questions of law and fact concerning the detention . . . decision, but we accept

the district court’s findings of historical fact which support that decision unless they

are clearly erroneous.” United States v. Cisneros, 328 F.3d 610, 613 (10th Cir.

2003). “On clear error review, our role is not to re-weigh the evidence; rather, our

review of the district court’s finding is significantly deferential.” United States v.

Gilgert, 314 F.3d 506, 515-16 (10th Cir. 2002) (internal quotation marks omitted).

II. Speedy Trial

       Mr. Taylor argues that his continued detention violates the speedy-trial

requirement of § 3164(b) that a defendant who has been detained for greater than

ninety days must be released. Noting that he will have been incarcerated for more

than two years before trial, he contends that the district court erred in failing to

exclude from the ninety-day calculation the time between the original trial date of

October 28, 2014, and the rescheduled trial date of June 1, 2015, when the court

granted an ends-of-justice continuance under § 3161(h)(7).

       The district court granted the continuance because Mr. Taylor moved to

suppress wiretap evidence on the last possible day for filing pretrial motions and

because he never asserted that the motion could not have been filed any sooner.

Mr. Taylor, however, believes that the court should have considered whether the

government could have sought wiretap information as soon as it received notice of

the motion to suppress, but, instead, waited to seek that information until after the

district court ruled on the motion.


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      Under 18 U.S.C. § 3161(h)(7)(A), time is excluded under § 3164(b) when the

district court grants a continuance at the government’s request, if the court granted

the continuance to serve the ends of justice, which outweigh the interests of the

defendant and the public in a speedy trial. An ends-of-justice continuance is used in

rare “cases demanding more flexible treatment.” United States v. Watson, 766 F.3d

1219, 1229 (10th Cir.) (internal quotation marks omitted), cert. denied, 135 S. Ct.

735 (2014). A court is empowered to “grant an excludable continuance . . . when the

government needs additional time to prepare, so long as the government has not

created that need itself through lack of diligence.” United States v. Occhipinti,

998 F.2d 791, 797 (10th Cir. 1993).

      We conclude, under the circumstances presented, that the district court

appropriately granted an ends-of-justice continuance. In considering the complexity

of Mr. Taylor’s case and the multiple defendants, the district court appropriately

weighed his and society’s interest in a speedy trial against the ends of justice, and

correctly concluded that the ends of justice had the greater weight. Cf. United States

v. Theron, 782 F.2d 1510, 1513 (10th Cir. 1986) (engaging in weighing, but reaching

different result under facts of case). The court’s ruling on the late-filed motion to

suppress put the government in the position of needing to obtain more information

concerning the wiretaps. Nothing indicates that the government could have

anticipated this late-filed motion. Nor could it have predicted how the court would




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rule on the motion. Thus, it cannot be concluded that the government acted without

diligence.

      Furthermore, Mr. Taylor did not “use[] all means available to him to secure an

immediate trial.” Id. He never asserted that he desired an immediate trial; rather, he

filed numerous pretrial motions, including one to toll his right to a speedy trial.

III. Due Process

      Mr. Taylor argues that continued detention violates his right to due process

and is punitive, because he did not request a continuance and he did not submit an

untimely motion to suppress or take other action to delay the trial. Also, he argues

that although he filed numerous pretrial motions, none caused the trial continuance.

Rather, as with his speedy-trial argument, he believes the government should have

acted earlier to obtain wiretap information.

      Pretrial detention is permissible if it is regulatory and not punitive. United

States v. Salerno, 481 U.S. 739, 747 (1987). Preventing danger to the community

and assuring presence at trial are permissible regulatory reasons for detention. Id.;

Bell v. Wolfish, 441 U.S. 520, 536-37 (1979). But pretrial detention for a lengthy

period of time may implicate due process concerns. See Theron, 782 F.2d at 1516;

see also United States v. Briggs, 697 F.3d 98, 103 (2d Cir. 2012) (stating that “the

Constitution imposes no bright-line limit on the length of pretrial detention,” but

“very long detentions must be exceptional”). But delays caused by a defendant do

not present due process concerns. See Theron, 782 F.2d at 1516.


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       We recognize that two years of pretrial detention is lengthy. But, as the

district court found, most of the delay in proceeding to trial is attributable to

Mr. Taylor. He has delayed his trial based on his own numerous pretrial motions and

his joining motions filed by his co-defendants, as well as the last-minute filing of the

in-part successful motion to suppress. Additionally, the complexity of the case, as

recognized by Mr. Taylor, as well as the large number of defendants contributed to

the delay. Thus, we conclude that Mr. Taylor’s detention does not violate due

process.

                                     CONCLUSION

       Accordingly, we affirm the district court’s decision requiring pretrial

detention.


                                                 Entered for the Court
                                                 Per Curiam




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