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

                            FOR THE TENTH CIRCUIT                        November 6, 2017
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
In re: HENRY ROBINSON,
                                                           No. 17-1329
     Petitioner.                               (D.C. No. 1:17-CR-00134-CMA-21)
                                                            (D. Colo.)
–––––––––––––––––––––––––––––––––––

UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                         No. 17-1330
                                               (D.C. No. 1:17-CR-00134-CMA-21)
HENRY ROBINSON,                                             (D. Colo.)

     Defendant - Appellant.
                     _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      Henry Robinson is one of 22 codefendants who have been indicted for their

roles in an alleged drug conspiracy. No trial date has been set. Robinson has been

detained pending trial for over five months based on a detention order issued under

the Bail Reform Act. Although most of his codefendants have been released on

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
bond, Robinson faces prolonged detention because the district court granted the

government’s motion for an ends-of-justice continuance, with a corresponding

180-day exclusion for speedy trial purposes under 18 U.S.C. § 3161(h)(7)(A).

         Robinson seeks pretrial release through two separate filings: (1) an appeal of

the district court’s September 5, 2017, order denying his motion for a speedy trial and

for severance of defendants or, in the alternative, for release from detention under

18 U.S.C. § 3164(c) (“September 5th order”); and (2) a petition for writ of

mandamus. The appeal is authorized by Fed. R. Crim. P. 9(a), and we have

jurisdiction under 18 U.S.C. § 3145(c) and 28 U.S.C. § 1291. We remand for the

district court to conduct further proceedings in accordance with this order. We deny

the mandamus petition as moot. We grant Robinson’s motion for leave to file a reply

brief.

                                   I.     Background

         After Robinson was indicted, the magistrate judge conducted a detention

hearing under 18 U.S.C. § 3142(f). Robinson did not contest detention because his

newly retained counsel “was not in a position to present evidence to rebut the

statutory presumption of detention.” Aplt. App. at 16. The magistrate judge

considered and weighed the statutory factors listed in § 3142(g) as required. He

concluded that no release conditions would reasonably assure Robinson’s appearance

and the safety of others and the community and therefore ordered pretrial detention.

See Aplt. App. at 14-15 (citing Robinson’s “past failures to comply with court orders

and conditions of probation, his decision not to contest pretrial detention, [his]

                                             2
admitted drug use, his prior convictions for drug and weapons offenses, and the

substantial penalties” facing him, i.e., a minimum mandatory of ten years and a

maximum of life imprisonment). Days later, Robinson moved to reopen his detention

hearing, but his motion was denied.

      Shortly thereafter, the government moved for a 180-day ends-of-justice

continuance and a corresponding exclusion of the continuance time for speedy trial

purposes under § 3161(h)(7)(A) and (B)(ii). Robinson opposed the motion 1 and

demanded a trial or release by August 3, 2017—the 90-day deadline in § 3164. The

district court granted the motion and extended the speedy trial clock for all

defendants to January 30, 2018.

      Robinson next moved for a speedy trial under the Sixth Amendment and for

severance of defendants under Fed. R. Crim. P. 14(a) or, in the alternative, for release

from detention under § 3164(c). In the September 5th order, the district court

construed the motion as a request to reverse the 180-day exclusion from Robinson’s

speedy trial clock, denied the motion, and reaffirmed the continuance and the

exclusion of time. It then found that the length of Robinson’s pretrial detention did

not violate § 3164, implicate due process concerns, or necessitate release under

United States v. Theron, 782 F.2d 1510 (10th Cir. 1986). In addition, the court




      1
        Two of Robinson’s codefendants also objected. Sixteen did not object, and
three had not made an appearance at the time of the motion.
                                           3
deemed severance unnecessary because Robinson did not establish that joinder of the

defendants would compromise or prejudice his trial. 2

                                       II.    Analysis

A.       The Speedy Trial Act

         Under the Speedy Trial Act, a defendant must be tried within 70 days from the

filing date of the information or indictment or the date of the defendant’s first

appearance, whichever is later. 18 U.S.C. § 3161(c)(1). There is a separate clock for

pretrial detention—90 days—that applies in this case. Id. § 3164(b). The Act

prioritizes the trial of “a detained person who is being held in detention solely

because he is awaiting trial.” Id. § 3164(a)(1). “Failure to commence trial of a

detainee as [required], 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 [§ 3161(a)], shall be held in custody pending trial after the expiration of

such [90]-day period required for the commencement of his trial.” Id. § 3164(c).

See, e.g., Theron, 782 F.2d at 1516-17 (finding a violation of § 3164 and ordering

that the defendant be released on bond with appropriate restrictions or tried within 30

days).

             Section 3161(h) enumerates periods of delay that shall be excluded in

computing the statutory deadline for trial. Under § 3164(b), time that is excludable


         2
         The district court also denied Robinson’s request for pretrial release to the
extent it challenged the detention order issued under § 3142. But Robinson does not
challenge that ruling on appeal.

                                               4
for purposes of a defendant’s 70-day speedy trial clock is also excludable against the

90-day pretrial detention clock. Relevant here, there is an exclusion for “[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.”

18 U.S.C. § 3161(h)(7). There is also an exclusion for “[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. § 3161(h)(6).

       On appeal, Robinson argues that the district court’s refusal to release him from

custody pending trial violates § 3164 and his constitutional due process rights.

“[C]ompliance with the Speedy Trial Act’s legal requirements is subject to de novo

review.” United States v. Zar, 790 F.3d 1036, 1043 (10th Cir. 2015); accord United

States v. Spring, 80 F.3d 1450, 1456 (10th Cir. 1996) (“We review de novo the trial

court’s application of the legal standards of the Speedy Trial Act . . . and we review

for clear error its factual findings.”).

       To evaluate Robinson’s claim, we need to ascertain whether an exclusion of

time is appropriate under § 3161(h) and, if so, how much time should be excluded.

We are unable to make that determination based on the record before us for two

reasons. First, the district court extended Robinson’s speedy trial clock under

§ 3161(h)(7) without considering his individual interest in a speedy trial, as required




                                           5
by the language of the statute and Theron. 3 Second, the district court did not

determine what constitutes “[a] reasonable period of delay” under § 3161(h)(6), even

though that provision clearly applies here. We address each deficiency in turn and

remand for appropriate findings.

B.    Exclusion of Time Based on § 3161(h)(7)

      The district court granted a 180-day ends-of-justice continuance under

§ 3161(h)(7) and extended the speedy trial clock accordingly for all defendants,

despite Robinson’s objection; it then reaffirmed that ruling in the order under review

here. The basis for the ruling is set forth in the transcript for the May 26, 2017,

status conference. 4 The district court considered the complexity of the case, the

existence of many codefendants and their interests as a whole, the vast amount of

discovery, and other factors listed in § 3161(h)(7)(B)(ii), without taking into account

Robinson’s individual interest in a speedy trial.

      “[I]t must be clear from the record that the trial court struck the proper balance

when it granted the continuance” under § 3161(h)(7). Spring, 80 F.3d at 1456

(internal quotation marks omitted). Here, it is not. The district court’s analysis is

      3
        When we issued Theron, the ends-of-justice provision was set forth in
18 U.S.C. § 3161(h)(8). The statute has since been amended, and this provision is
now codified at § 3161(h)(7). Likewise, former § 3167(h)(7) is now codified at
§ 3161(h)(6). Because the language in both provisions remains the same, we refer to
the subsections as currently numbered when discussing Theron to avoid confusion.
      4
         Because the minute entry for the status conference is part of the record but
the transcript is not, we take judicial notice of the transcript. See Barnes v. United
States, 776 F.3d 1134, 1137 n.1 (10th Cir. 2015), cert. denied, 136 S. Ct. 1155
(2016).

                                            6
flawed for the same reasons we identified in Theron, where the district court granted

an ends-of-justice continuance based on “(1) the codefendants’ need for preparation

time; (2) the complexity of the case; and (3) the desirability of trying all defendants

at once.” Theron, 782 F.2d at 1512.

       For the first factor, we emphasized that the district court should have

considered Theron’s interests, not merely those of his codefendants. A continuance

is appropriate under § 3161(h)(7) only where the ends of justice “outweigh the best

interest of the public and the defendant in a speedy trial.” Id. at 1513 (internal

quotation marks omitted). The provision “does not say that the court may weigh the

interests of codefendants,” as does § 3161(h)(6). Id. If a defendant “used all means

available to him to secure an immediate trial[,] his desire and his position as a

defendant who is not out on bail must weigh strongly in favor of applying” the

Speedy Trial Act’s limitation. Id.

       For the second factor, we emphasized that “the complexity of a case does not

automatically justify an ends-of-justice continuance.” Id.

       For the third factor, we stated that “the coincidence of a complex case and

multiple defendants, without more,” does not outweigh a particular defendant’s

interest in a prompt trial. Id. Stated otherwise, an ends-of-justice continuance is not

appropriate where an “incarcerated defendant’s only contribution to the need for

delay is his alleged participation with the codefendants in a complex scheme alleged

to be illegal.” Id.



                                            7
      We then unequivocally stated that these factors were “either improper or

insufficient . . . to justify an ends-of-justice continuance,” where there was no

consideration given to the individual defendant’s interest in a speedy trial. Id. at

1512-13.

      We remand for the district court to consider Robinson’s interests as an

individual defendant for purposes of § 3161(h)(7). 5 Though our case law does not

require a remand (in Theron, for instance, we simply found that the district court

committed an error and that no tolling had occurred), a remand is necessary and

appropriate here because of a second gap in the district court’s analysis.

C.    Exclusion of Time Based on § 3161(h)(6)

      The government did not invoke—nor did the district court consider—

§ 3161(h)(6), even though it clearly applies. See id. § 3161(h)(6) (“The following

periods of delay shall be excluded . . . in computing the time within which the trial . .

. must commence: . . . 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.” (emphasis added)). “An exclusion for delay

attributable to one defendant is applicable to all co-defendants.” United States v.

Vogl, 374 F.3d 976, 983 (10th Cir. 2004) (internal quotation marks omitted).

      The “obvious purpose” of § 3161(h)(6) is “to accommodate the efficient use of

prosecutorial and judicial resources in trying multiple defendants in a single trial.”

      5
         Our conclusion that the district court’s analysis under § 3161(h)(7) was
insufficient as to Robinson does not carry over to his codefendants, most of whom
did not oppose the motion.
                                            8
Theron, 782 F.2d at 1514. To effectuate this purpose, our case law recognizes a

“strong presumption favoring trying properly joined defendants together.” Zar,

790 F.3d at 1043. For example, “where . . . a conspiracy is charged, individual

conspirators should be tried together.” United States v. Wright, 826 F.2d 938, 945

(10th Cir. 1987). Likewise, “[w]here the government will recite a single factual

history, put on a single array of evidence, and call a single group of witnesses, a

single trial is preferred.” Vogl, 374 F.3d at 984 (internal quotation marks omitted).

Applying these principles, this court has found that “a delay in the prosecution of [a

single defendant]” may be appropriate. United States v. Mobile Materials, Inc.,

871 F.2d 902, 917 (10th Cir. 1989), abrogated on other grounds by Bloate v. United

States, 559 U.S. 196 (2010).

      Robinson has multiple codefendants, no severance has been granted, and the

time for trial has not run because the district court granted a 180-day ends-of-justice

continuance based in part on the existence of those codefendants. Therefore,

§ 3161(h)(6) extends Robinson’s 90-day deadline under § 3164 by some amount of

time. But for how long?

      In Theron, we did not need to determine what constitutes a reasonable delay

under § 3161(h)(6) because we found that § 3164 required bail or immediate trial.

782 F.2d at 1514. And while we declined to establish a “bright line” as to what

constitutes a reasonable delay for purposes of § 3164, we had “no hesitancy” in

saying that four months additional incarceration before trial was “too long” under the

circumstances present in that case. Id. at 1516.

                                           9
       We have since provided more guidance on “reasonableness” under

§ 3161(h)(6). Based on the legislative history of the Speedy Trial Act, we have

instructed: “[I]n the application of the reasonableness standard under [§ 3161(h)(6)],

judicial efficiency in the trial of multiple defendants is to be preferred to an inflexible

adherence to the letter of the Speedy Trial Act.” Vogl, 374 F.3d at 983 (internal

quotation marks omitted). In addition, we have identified three factors that are

relevant to a reasonable determination: “(1) whether the defendant is free on bond,

(2) whether the defendant zealously pursued a speedy trial, and (3) whether the

circumstances further the purpose behind the exclusion to accommodate the efficient

use of prosecutorial and judicial resources in trying multiple defendants in a single

trial.” Id. at 984 (internal quotation marks omitted). This inquiry is “heavily

factual.” Id. On remand, the district court should apply these standards and

determine “a reasonable period of delay” for purposes of § 3161(h)(6).

       On remand, the district court should revisit whether the length of Robinson’s

pretrial detention violates § 3164 and implicates due process concerns under Theron.

Even though the district court did not decide what constitutes “a reasonable period of

delay” for purposes of § 3161(h)(6) in the September 5th order, it briefly assessed

Robinson’s pretrial detention with respect to § 3164 and due process and concluded

that “neither [§ 3164] nor Theron mandates [Robinson’s] release.” Aplt. App. at 68.

In reaching this conclusion, the district court relied heavily on an unpublished

opinion, United States v. Taylor, 602 F. App’x 713, 716 (10th Cir. 2015), and a

district court order, United States v. Lacallo, No. 09-CR-00055-PAB-2,

                                            10
4511079, at *1 (D. Colo. Nov. 1, 2010). Both are distinguishable because in each

case the defendants’ behavior contributed to trial delays and prolonged their pretrial

detention. In contrast, Robinson has consistently asserted his right to a speedy trial

and has not contributed to any delays.

                                  III.   Conclusion

      We remand for the district court to conduct further proceedings in accordance

with this order. We deny the mandamus petition as moot.


                                            Entered for the Court
                                            Per Curiam




                                          11
