     Case: 10-11121 Document: 00511352241 Page: 1 Date Filed: 01/14/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          January 14, 2011
                                     No. 10-11121
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MATTHEW NORMAN SIMPSON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:09-CR-249-6


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Matthew Norman Simpson appeals the district court’s denial of his motion
to reopen his detention hearing under 18 U.S.C. § 3142(f) and its determination
that he was not entitled to automatic review of his detention under 18 U.S.C.
§ 3164(c).
       Review of questions of statutory interpretation is de novo. United States
v. Kay, 359 F.3d 738, 742 (5th Cir. 2004). This court reviews a district court’s
ruling on a motion to reopen a detention hearing under § 3142(f) for an abuse of

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-11121 Document: 00511352241 Page: 2 Date Filed: 01/14/2011

                                   No. 10-11121

discretion. United States v. Hare, 873 F.2d 798 (5th Cir. 1989). A detainee is
entitled to reopen his detention hearing only if he presents new and material
evidence bearing on the issue whether there are conditions of release that will
reasonably assure his appearance at trial. See id. at 799.
      Simpson contends that he has presented new and material evidence: the
length of his detention, the results of a polygraph examination showing that he
has no intent to flee, the conditions of his confinement, and the large amount of
discovery in his case. Simpson has failed to establish that this information is
new and material; therefore, he has not shown that the district court abused its
discretion in denying his motion to reopen under § 3142(f). See id. at 798-99.
      Simpson also contends that he is entitled to automatic review of his
detention under § 3164, which pertains to persons detained pending trial and
which provides, in part, as follows:
      (b) The trial of any person described in subsection (a)(1) [a detained
      person who is being held in detention solely because he is awaiting
      trial] . . . of this section shall commence not later than ninety days
      following the beginning of such continuous detention . . . . The
      periods of delay enumerated in [18 U.S.C.] section 3161(h) are
      excluded in computing the time limitation specified in this section.
      (c) Failure to commence trial of a detainee as specified in subsection
      (b), through no fault of the accused or his counsel . . . shall result in
      the automatic review by the court of the conditions of release. No
      detainee, as defined in subsection (a), shall be held in custody
      pending trial after the expiration of such ninety-day period required
      for the commencement of his trial.
      In this regard, the district court relied on language contained in § 3164(b)
that states that the periods of delay enumerated in 18 U.S.C. § 3161(h) are
excluded in computing the time limitations specified in § 3164. The district
court determined that, because it granted an “ends-of-justice” continuance under
§ 3161(h)(7)(A) due to the complexity of the case, the delay was excluded from
the 90-day time limitation prescribed by § 3164(b). The district court concluded
that, because fewer than 90 days had elapsed between Simpson’s arrest and its


                                         2
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                                   No. 10-11121

order designating the case as complex, § 3164(c) did not require Simpson’s
release or the review of his detention.
      This court agrees with the district court that the “ends-of-justice”
continuance, which is properly excludable under § 3161(h)(7)(A), resulted in
Simpson not being entitled to automatic review of his pretrial detention under
§ 3164(c). See § 3164(b); see also § 3161(h)(7)(A). This conclusion is consistent
with the holding in two Ninth Circuit opinions. See United States v. Avila, Nos.
90-30221, 90-30385, 90-30386, 90-30401, 1992 WL 75236, *13 (9th Cir. Apr. 16,
1992) (unpublished) (determining that because the district court granted an
"‘ends-of-justice'" continuance, which was excludable under § 3161(h)(8), the
court's failure to conduct an automatic review of appellants' pretrial detention
did not violate § 3164(c)); see also United States v. Dutkel, No. 88-5465, 1990 WL
127618, *2 (9th Cir. Sept. 6, 1990) (unpublished) (determining that because the
district court granted an "‘ends-of-justice'" continuance, § 3164(c)'s automatic
review provision did not apply).
      AFFIRMED.




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