ORDER AND JUDGMENT
Henry Robinson is one of 22 codefen-dants 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 eodefendants have been released on 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 seрarate 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 authorizеd 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 а 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 сoncluded 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 рrobation, his decision not to contest pretrial detention, [his] 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
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(e). 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 prоcess concerns, or necessitate release under United States v. Theron,
II. Analysis
A. The Speedy Trial Act
Under the Speedy Trial Act, a defendant must be triеd 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 hеld 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 [903-day period required for the commencement of-his trial.” Id. § 3164(c). See, e.g., Theron,
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 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 codefen-dant 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,
To evaluate Robinson’s claim, we need to ascertain whether аn 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 by the language of the statute and Theron.
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.
“[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,
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 appropriatе 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 codefen-dants,” as does § 3161(h)(6). Id. If a defendant “used all means available to him to securе 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 thе 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 codefen-dants in a complex scheme alleged to be illegal.” Id.
We then unequivocally stated that these factors were “either improper or insufficient ... to justify an ends-of-justice continuаnce,” 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).
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 еxclusion for delay attributable to one defendant is applicable to all co-defendants.” United States v. Vogl,
The “obvious purpose” of § 3161(h)(6) is “to accommodate the efficient use of prose-cutorial and judicial resources in trying multiple defendants in a single trial.” Theron,
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 Therm, 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.
We have since provided more guidance on “reasonableness” under § 3161(h)(6). Based on the legislаtive history of the Speedy Trial Act, we have instruéted: “[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,
On remand, thе 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 assessеd 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,
III. Conclusion
We remand fоr the district court to conduct further proceedings in accordance with this order. We deny the mandamus petition as moot.
Notes
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.
. Two of Robinson’s codefendants also objected. Sixteen did not object, and three had not made an appearance at the time of the motion.
. 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.
. 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, wе refer to the subsections as currently numbered when discussing Theron to avoid confusion.
. 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,
. Our conclusion that the district court's analysis under § 3161(h)(7)-was insufficient as to Robinson does not carry over to his codefen-dants, most of whom did not oppose the motion.