United States of America v. Paul Francisco Torres Iii

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PAUL FRANCISCO TORRES III,
Defendant-Appellant.
No. 21-50006
D.C. Nos.
2:19-cr-00490-CAS-1
2:19-cr-00490-CAS
OPINION
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
Filed April 23, 2021
Before: Mary H. Murguia and Morgan Christen, Circuit
Judges, and Barbara M. G. Lynn,* Chief District Judge.
Opinion by Judge Murguia
* The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.

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2 UNITED STATES V. TORRES
SUMMARY**
Criminal Law
The panel affirmed the district court’s denial of Paul
Francisco Torres III’s motion for release from pretrial
detention in a case that raises traditional questions of
statutory interpretation and due process that have been
complicated by the COVID-19 pandemic.
Torres 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 did not
dispute that his trial was rightfully delayed as a result of the
COVID-19 pandemic pursuant to the Speedy Trial Act’s
ends-of-justice provision, 18 U.S.C. § 3161(h)(7)(A).
Instead, he argued 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 asserted that due
process mandates his release because the length of his
pretrial detention exceeds the limits of what due process can
tolerate.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. TORRES 3
The panel held that Torres’s pretrial detention is
consistent with the Speedy Trial Act. First, the panel
concluded that because the plain text of § 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.
Second, the panel concluded that 18 U.S.C. § 3164(b)
unambiguously provides that time properly excluded under
§ 3161(h) from the 70-day clock for trial after being charged
(18 U.S.C. § 3161(c)) is properly excluded from the 90-day
clock for pretrial detention (18 U.S.C. § 3164). The panel
wrote that because the record suggests that the district court
considered Torres’s detention in granting the ends-of-justice
continuances, Torres’s pretrial detention was properly tolled
under the Speedy Trial Act.
The panel further concluded that due process does not
yet require Torres’s release, but observed that the length of
Torres’s pretrial detention is likely approaching the outer
bounds of due process.
COUNSEL
James H. Locklin (argued), Deputy Federal Public Defender;
Cuauhtemoc Ortega, Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; for
Defendant-Appellee.
Bram M. Alden (argued), Acting Chief, Criminal Appeals
Section; Andrew M. Roach and JohnPaul LeCedre, Assistant
United States Attorneys, General Crimes Section; Tracy L.
Wilkison, Acting United States Attorney; United States
Attorney’s Office, Los Angeles, California; for Plaintiff-
Appellant.

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4 UNITED STATES V. TORRES
OPINION
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 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

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UNITED STATES V. TORRES 5
periods set by the Act. This 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 § 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 19–

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6 UNITED STATES V. TORRES
20 (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 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).

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UNITED STATES V. TORRES 7
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 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

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8 UNITED STATES V. TORRES
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 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

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UNITED STATES V. TORRES 9
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 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

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10 UNITED STATES V. TORRES
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 [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
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

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UNITED STATES V. TORRES 11
v. Torres, 828 F.3d 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.’”
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).
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.

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12 UNITED STATES V. TORRES
Id. at 1614 (emphasis in original) (quoting U.S. Const.
amend. VI). “Congress passed the 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 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,

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UNITED STATES V. TORRES 13
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 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
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.

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14 UNITED STATES V. TORRES
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.
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
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).

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UNITED STATES V. TORRES 15
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 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
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).

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16 UNITED STATES V. TORRES
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
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,
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.
7 Torres also argues that the legislative history of § 3164(b) supports
his argument. However, because we do not find the plain text of

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UNITED STATES V. TORRES 17
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, 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
§ 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).
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.

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18 UNITED STATES V. TORRES
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). 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

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UNITED STATES V. TORRES 19
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 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
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

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20 UNITED STATES V. TORRES
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.
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
permitting a reasonable delay for cases involving codefendants was
formerly § 3161(h)(7) but is now § 3161(h)(6).

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UNITED STATES V. TORRES 21
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 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

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22 UNITED STATES V. TORRES
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 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.
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.

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UNITED STATES V. TORRES 23
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 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.

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24 UNITED STATES V. TORRES
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 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 substantive policy

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UNITED STATES V. TORRES 25
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
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.

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26 UNITED STATES V. TORRES
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 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

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UNITED STATES V. TORRES 27
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 (“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,

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28 UNITED STATES V. TORRES
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.
AFFIRMED.

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