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July 6, 1987

United States of America, Plaintiff,
Alvaro Mendoza, et al., Defendants

The opinion of the court was delivered by: SAROKIN

 Defendant, Alvaro Mendoza, one of multiple defendants in this criminal proceeding, moves for mandatory immediate release from pre-trial custody pursuant to the provisions of 18 U.S.C. § 3164, alleging that he has been in continuous detention awaiting trial in excess of ninety days and that "through no fault of his own, his trial has not commenced." 18 U.S.C. § 3164(c). Relying on that portion of § 3164(c) which provides that "no detainee . . . shall be held in custody pending trial after the expiration of such ninety-day period required for the commencement of his trial", defendant argues that, as a matter of law, he is entitled to be released.

 Recognizing that the statutory mandate compels this court to extend defendant's detention for a "reasonable" period, the court must deny defendant's motion as a matter of law. Nevertheless, in light of the significant additional delay anticipated prior to trial, due process requires, at a minimum, that the court grant defendant Mendoza an automatic review of the detention determination, placing a heightened burden of proof upon the government to justify continued detention.


 On January 16, 1987, defendant Alvaro Mendoza, and seven others, were indicted by a federal grand jury on charges of conspiracy to distribute cocaine and unlawful use of the telephone in furtherance of narcotics activities. On January 22, 1987 defendant Mendoza was arraigned before this court. Upon application by the government, the court ordered Mendoza detained without bail pursuant to 18 U.S.C. § 3142(e), finding that the defendant posed a serious risk of flight. Accordingly, Mendoza's continuous custody on federal charges began on January 22, 1987. *fn1"

 By order dated April 15, 1987, the court granted the government's application to exclude the period from January 22, 1987 to March 31, 1987 from computation for purposes of the Speedy Trial Act based on a finding that the ends of justice served by excluding this time outweigh the best interests of the public and the defendants in a speedy trial. See 18 U.S.C. § 3161 (h)(8). The court reached this conclusion in large part because co-defendants Alvaro Echeverri, Rodrigo Echeverri and Kenneth Pagliaroli were not represented by counsel during most of the time period in issue. Neither defendant Mendoza, nor his counsel, in any way contributed to the need for this continuance.

 In addition, time for trial has been tolled by the filing of pre-trial motions. On May 18, 1987, more than three weeks after the expiration of the ninety-day limitation mandated by § 3164, defendant Mendoza joined in the omnibus pre-trial motions earlier filed by co-defendant Mena. Hearing on these motions currently pending before the court has been delayed by stipulation of counsel until September 14, 1987.

 Pursuant to the government's application, in consultation with defense counsel, trial in this matter is set to commence September 28, 1987.


 The court recognizes that the protections afforded those detained and awaiting trial under 18 U.S.C. § 3164 are not absolute. By legislative amendment in 1979 Congress expressly rewrote § 3164 to exclude the "periods of delay enumerated in section 3161(h) [of the Speedy Trial Act]" from computation of the ninety-day pre-trial incarceration limitation.

 In moving for his release, defendant Mendoza argues that the application of these exclusions is limited by the language of § 3164(c), which mandates a pre-trial detainee's release if he has been detained longer than ninety days "through no fault of the accused or his counsel." Mendoza suggests that, to give effect to § 3164(c), the only § 3161(h) exclusions that apply are those that can be attributed to Mendoza's affirmative conduct. Finding the language of the statute to the contrary, the court cannot agree.

 Among the periods of delay tolerated by § 3161(h), and therefore excludable under § 3164, is a "reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and no motion for severance has been granted." 18 U.S.C. § 3161(h)(7). By incorporating the § 3161(h)(7) exclusion into § 3164, Congress clearly contemplated some enlargement of the ninety-day limit on pre-trial incarceration to accommodate delay attributable to co-defendants' conduct. *fn3" Though a defendant's blamelessness in contributing to the delay should be considered in determining what constitutes a "reasonable" extension of his detention, where as here, there are multiple co-defendants, no severance has been requested and the co-defendants time for trial has not run, the statute purposefully precludes mandatory release at the expiration of ninety days.

 The Third Circuit interpreting § 3161(h)(7)'s legislative history has discerned "a strong congressional preference for joint trial and an intention that delays resulting from joinder of co-defendants be liberally excluded". United States v. Novak, 715 F.2d 810, 814 (3d Cir. 1983) cert. denied 465 U. S. 1030, 104 S. Ct. 1293, 79 L. Ed. 2d 694 (1983). Consistent with Congressional intent, the Third Circuit has held that "an exclusion applicable to one defendant applies to all co-defendants", subject to a reasonableness constraint. Id. at 815. See also ...

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