UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, v. No. 22-cr-394 QUINTON MCLEAN,

Defendant.

MEMORANDUM OPINION

The Bail Reform Act, 18 U.S.C. §§ 3141–56, “entitles defendants to a prompt detention

hearing, either immediately at the defendant’s first appearance before a judicial officer, or within

days thereafter.” United States v. Singleton,

(D.C. Cir. 1999) (citing

(f)). Detention hearings typically examine whether defendants pose a serious risk of flight

or “danger to the community if allowed to remain at large until [] trial.” United States v. Smith,

(D.C. Cir. 1996). “In recognition of the fact that defendants remain incarcerated

between the time the court determines a hearing is necessary and the time the hearing occurs, see

§ 3142(f), Congress strictly limited the availability of continuances.” Singleton,

.

The question before this Court was whether the Bail Reform Act authorized the government to fiat

a three-day continuance, over the defendant’s—and the Court’s—objection.

I. BACKGROUND

A. Pretrial Detention

“In our society liberty is the norm, and detention prior to trial or without trial is the carefully

limited exception.” United States v. Munchel,

(D.C. Cir. 2021) (quoting

United States v. Salerno,

(1987)). However, the “limited exception” has now

swallowed the rule. Between 1983—the year before Congress enacted the Bail Reform Act—and

1 2019, federal pretrial incarceration rates skyrocketed from less than 24% to 75%. See Alison

Siegler et al., Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis,

Univ. Chi. L. Sch. Fed. Crim. Just. Clinic 1, 20–22 (Oct. 2022),

https://freedomdenied.law.uchicago.edu/report [hereinafter Freedom Denied]. In the same

timeframe, the average length of pretrial detention increased from less than two months to a year.

See id. at 23. In other words, “this is the bad place,” The Good Place: Chapter 13: Michael’s

Gambit (NBC television broadcast Jan. 19, 2017), where liberty is no longer the norm.1

B. Defendant’s Detention Hearing on December 2, 2022

On December 1, 2022, a grand jury in the District of Columbia returned a one-count

indictment charging Defendant Quinton McLean (“Mr. McLean”) with violating

(g)(1). See Indictment 1, ECF No. 1. On December 2, 2022, law enforcement arrested Mr.

McLean. See Arrest Warrant 1, ECF No. 7. Later that day, Mr. McLean appeared before the

undersigned for an initial appearance. See Min. Entry, Dec. 2, 2022.

During the initial appearance, the government moved for a continuance of the detention

hearing for three days pursuant to Section 3142(f). See

Mr. McLean objected and requested an

immediate hearing, as he was concerned about losing his job. See Initial Appearance of Quinton

McLean (“Initial Appearance”) at 3:19:40 (Dec. 2, 2022). The government explained that the

additional time would allow the government “to file a detention memo . . . and also to send some

discovery over” to the defense.

at 2:41:01. But the undersigned had already indicated that a

detention memorandum was unnecessary. See

at 2:40:46. And Mr. McLean’s attorney stated

that he was prepared to proceed without additional discovery. See

at 3:19:52. The government’s

1 The explosion in pretrial detention comes at a cost. Taxpayers spend over $1 billion annually to jail defendants before trial. See Freedom Denied, supra, at 23. And the human costs are not so easily calculated.

2 only response was that the Court was statutorily barred from denying its continuance request. See

id. at 3:22:40.

The Court found that Section 3142(f) does not force judges to grant every three-day

continuance request. To hold otherwise would run afoul of the text, frustrate the purpose of the

Bail Reform Act, and inappropriately penalize presumed-innocent defendants. This Memorandum

Opinion memorializes the reasoning for that decision.

II. ANALYSIS

A. Interpreting

(f)

This case involves a “pure legal question of statutory interpretation.” United States v.

Wilson,

, 352 (D.C. Cir. 2002); see United States v. Gloster,

(D.D.C. 1997) (interpreting

(g) and finding that it is not a “crime of violence”

under the Bail Reform Act). The Court “look[s] to the ‘traditional tools of statutory

interpretation—text, structure, purpose, and legislative history’” to determine Section 3142(f)’s

best meaning. N. Am. Butterfly Ass’n v. Wolf,

(D.C. Cir. 2020) (quoting In re

Sealed Case,

(D.C. Cir. 2019)).

The Text of 18 U.S.C § 3142(f)

“In construing a statute, we look first for the plain meaning of the text. If the language of

the statute has a ‘plain and unambiguous meaning,’ our inquiry ends so long as the resulting

‘statutory scheme is coherent and consistent.’” United States v. Barnes,

(D.C.

Cir. 2002) (quoting Wilson, 290 F.3d at 352).

The disputed provision provides that:

The hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of such person may not exceed five

3 days (not including any intermediate Saturday, Sunday, or legal holiday), and a continuance on motion of the attorney for the Government may not exceed three days (not including any intermediate Saturday, Sunday, or legal holiday). During a continuance, such person shall be detained . . . .

(f)(2)(B) (emphasis added). The textual dispute centers on whether the language

“unless . . . the attorney for the Government [] seeks a continuance,”

forces the Court to grant

any request for a continuance made by the government, irrespective of the reason.

“The Supreme Court has made clear ‘that when a statute uses the word ‘shall,’ Congress

has imposed a mandatory duty upon the subject of the command.’” Verplanck v. England,

(D.D.C. 2003) (quoting Forest Grdns. v. Babbitt,

, 1187 (10th

Cir. 1999)) (citing United States v. Monsanto,

(1989)). Accordingly, the word

“shall” in “[t]he hearing shall be held immediately” is a command.

(f)(2)(B); see

Clean Water Action v. Pruitt,

(D.D.C. 2018) (collecting cases). And

“immediately” means “without interval of time.” Immediately, Merriam-Webster’s Dictionary,

https://www.merriam-webster.com/dictionary/immediately (last visited Sept. 20, 2024).

Of course, the sentence does not end there. The second clause carves out an exception:

“unless that person, or the attorney for the Government, seeks a continuance.” § 3142(f)(2)(B)

(emphasis added). “We must presume that Congress says what it means and means what it says,

and therefore must apply a statute as it is written, giving its terms the ordinary meaning that they

carried when the statute was enacted.” Norfolk S. Ry. Co. v. Perez,

(6th Cir.

2015) (citations omitted) (citing Conn. Nat’l Bank v. Germain,

(1992); Sandifer

v. U.S. Steel Corp.,

(2014)). Ordinarily, to “seek” means “to ask for[,]”

“request[,]” or “to try to acquire or gain.” Seek, Merriam-Webster’s Dictionary,

https://www.merriam-webster.com/dictionary/seek (last visited Sept. 20, 2024). Common usage

tracks this: when Janet seeks Jason’s hand in marriage, it is a request that Jason has the choice to

4 answer. Thus, § 3142(f)(2)(B) permits the government to ask for, request, or try to gain a

continuance from the court.

The government hopes to read in additional meaning to Section 3142(f): not only does it

read the statute to permit it to seek a continuance, but it reads it to also “divest the court of its

discretion to” grant that request. Rogers v. Amalgamated Transit Union Loc. 689,

(D.D.C. 2015). But statutes cannot be interpreted in a manner that nullifies discretion

given to courts. See

(rejecting interpretation of the statute of limitations that would strip the

court of its “discretion to extend time” under the Federal Rules of Civil Procedure). Indeed, a “trial

judge enjoys great discretion in ruling on a motion for a continuance.” United States v. Poston,

(D.C. Cir. 1990); see United States v. Flynt,

(9th Cir. 1985),

amended by

(9th Cir. 1985). This discretion is rooted in “the great deference . . .

owe[d] district courts in what are effectively their case-management decisions,” Yesudian ex rel.

United States v. Howard Univ.,

(D.C. Cir. 2001) (cleaned up). “The ordering of

[a continuance] is not a perfunctory or ministerial act on the district court’s part. It would be a

misuse of the statute for such motions to be granted so routinely that the statute amounts to no

more than a provision for an automatic continuance on [a party’s] request.” United States v. Fanter,

No. 8-cr-473,

, at *1 (D. Neb. Apr. 28, 2009) (cleaned up) (citations omitted)

(judge has discretion to decide if a hearing on competency is needed given that any such hearing

then continues pending deadlines in the case). Notably, this Court is unaware of any statute

granting an automatic continuance upon a party’s request, further demonstrating that case-

management decisions are for the courts, not the parties.2

2 When Congress intends to make a procedural mechanism automatic, it does so explicitly. For example, certain statutes have clear language mandating automatic stays. See, e.g., Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin,

, 1691 (2023)

5 To support its preferred meaning, the government is “cherry-picking one word out of it[:]”

unless. Borden v. eFinancial, LLC,

, 1235 (9th Cir. 2022). Yet, “[s]tatutory language

is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation

to the language of surrounding . . . statutes.” Wittman v. Koenig,

(7th. Cir. 2016)

(quoting State ex rel. Kalal v. Cir. Ct. for Dane Cnty.,

(Wis. 2004).3 “The

operative provision—the key to everything that comes after—is the requirement that,” United

States v. Voltz,

, 1302 (N.D. Ala. 2022), a detention hearing “shall be held

immediately[.]” § 3142(f)(2)(B) (emphasis added). This provision fortifies a contextual reading of

“seeks” as a request for permission from the court, as opposed to an automatic fiat by the

government that would mean detention hearings occur three days later, not “immediately.”

(“[T]he [Bankruptcy] Code includes a number of requirements, like the automatic stay provision [at

(a)], that generally apply to all creditors.”); Nken v. Holder,

, 424– 25 (2009) (discussing the Immigration and Nationality Act’s automatic stay provision, which was later repealed). 3 The following hypothetical neatly illustrates why context is essential:

Suppose a rule required football coaches to arbitrate any “dispute that arises in connection with the activities of an owner of a professional football team.” According to a strict constructionist, a football coach would have to arbitrate any dispute that he has with an owner, regardless of the dispute’s connection to the business of the football team. For example, if an owner sold a car with a faulty transmission to a football coach, the strict constructionist would require arbitration of the dispute because it arises in connection with an activity of the owner of the team. That interpretation would be foolish because it would ignore the context. A fair reading of the rule, in its context, would lead a reasonable reader to conclude that football coaches must arbitrate disputes that arise in connection with the activities of owners, as owners of football teams.

Pictet Overseas Inc. v. Helvetia Tr.,

, 1190–91 (11th Cir. 2018) (Pryor, W., concurring).

6 This Court’s reading reflects the broader context that “Congress strictly limited the

availability of continuances.” Singleton,

. “Any other reading of the statute would

render [‘immediately’] superfluous.” Hincapie-Zapata v. U.S. Att’y Gen.,

(11th Cir. 2020). And “[a] statute should be construed so that effect is given to all its provisions,

so that no part will be inoperative or superfluous, void or insignificant.” Hibbs v. Winn,

(2004) (cleaned up) (quoting 2A N. Singer, Statutes and Statutory Construction § 46.06,

pp. 181–186 (rev. 6th ed. 2000)). In practice, the undersigned’s experience is that detention

hearings almost always occur three days after the initial appearance—not “immediately”

thereafter—because of the government’s reading of § 3142(f)(2)(B). This appears to be a national

problem. See Marc Zilversmit, Note, Granting Prosecutors’ Requests for Continuances of

Detention Hearings,

, 765–68 (1987) [hereinafter Zilversmit] (cataloguing

districts where continuances are treated as automatic). Because this practice diverges from the

statute’s explicit direction, it cannot be what Congress meant to permit. “Congress could have

written a statute making [detention hearings occur within three days], but it did not. The actual

statute makes [detention hearings occur immediately].” McKinney v. Carey,

(9th Cir. 2002).

Moreover, the words following “unless” signal an exception to the rule established by the

words preceding it. And the “exception[] must not be interpreted so broadly as to swallow the

rule.” In re Woods,

(10th Cir. 2014) (citing Cuomo v. Clearing House Ass’n,

L.L.C.,

(2009)). If Section 3142(f) entitles the government to an automatic

continuance, the controlling mandate is neutralized and the exception becomes the rule—which is

in fact what now happens See discussion supra Section II.A.1. This “undermin[es] the purpose of

the statute itself.” Nat'l Fed'n of Fed. Emps. v. McDonald,

(D.D.C. 2015)

7 (cautioning against broadly constructing the “direct patient care” exception to the general rule

established by

); see Am. Fed'n of Lab. & Cong. of Indus. Orgs. v. Fed. Election

Comm'n,

(D.D.C. 2001) (rejecting “sweeping reading” of regulatory

exception to preserve the general rule), aff'd,

(D.C. Cir. 2003). “It is implausible, to

say the least, to suggest that, having created [the immediacy] rule, Congress then created an

exception that would swallow the rule[.]” McFadden v. U.S. Dep’t of Just.,

(D.D.C. 2017). Accordingly, continuances are not automatic upon request––lest the tail wag the

dog.

Finally, courts have characterized Section 3142 as permitting the government to seek—not

requiring a court to grant—a continuance. In Dolan v. United States, the Supreme Court

characterized the continuance at issue as one that a court “may” grant, not that the court must grant.

, 614 (2010). Others have gone so far as to assume the good cause standard would

apply to the government’s continuance request. See United States v. Simpkins,

(D.C. Cir. 1987) (“The [Bail Reform] Act provides that the detention hearing be held ‘immediately

upon the person’s first appearance before the judicial office’ (or within three days if the

government can show good cause[.])”). But see United States v. Williams,

, 1 n.4 (5th

Cir. 1993) (noting in passing the “the plain language . . . appears to require an automatic delay of

three days without the need for the Government to show any cause.”).

In sum, the best textual reading of Section 3142(f) is that judges have a mandate to hold a

detention hearing “immediately” but the discretion to consider granting a request for a

continuance. Nevertheless, this Court assumes arguendo that the statute is ambiguous and proceeds

to other statutory interpretation tools.

8 The Legislative Purpose and History of

(f)

This Court’s interpretation is consistent with the broader purpose of the Bail Reform Act.

“Congress did not formulate the pretrial detention provisions as punishment for dangerous

individuals. Congress instead perceived pretrial detention as a potential solution to a pressing

societal problem”—to “prevent[] danger to the community[.]” Salerno,

(cleaned

up) (citations omitted). To accomplish this goal, Congress “limit[ed] the circumstances under

which [pretrial] detention [could] be sought to the most serious of crimes” and entitled arrestees

“to a prompt detention hearing.”

(emphasis added).4 In short, Congress carefully tailored the

Bail Reform Act to address a “legitimate and compelling” interest in promoting public safety,

while simultaneously minimizing any infringement on the “liberty” of presumed innocent people.

at 749–50; see Benjamin v. Fraser,

, 49–50 (2d Cir. 2003) (quoting Bell v. Wolfish,

(1979)) (“‘A person lawfully committed to pretrial detention has not been

adjudged guilty of any crime,’ and thus, under the Due Process Clause, may not be punished in

any manner-neither cruelly and unusually nor otherwise.”) (cleaned up). If Section 3142(f)

“automatically allows a prosecutor three extra days [before the detention hearing,] . . . the statute

provides for the possible detention without bail of every person [who has a detention hearing].”

Zilversmit at 764. This would run counter to the statutory goal that the pretrial deprivation of

liberty be the “carefully limited exception.” Munchel,

(quoting Salerno,

).

This goal is consistent with “the public’s interest in the dispensation of justice that is not

unreasonably delayed[.]” Poston,

(quoting United States v. Burton,

,

4 “Prompt” is defined as “immediately.” Prompt, Merriam-Webster’s Dictionary, https://www.merriam-webster.com/dictionary/prompt (last visited Sept. 20, 2024). Another reminder of the mandate to hold the detention hearing right away.

9 489 (D.C. Cir. 1990)). Thus, “[t]he object of § 3142(f) is to guarantee a speedy bail determination,

to prevent the magistrate [judge or district] judge from ordering the defendant temporarily

detained, and then holding the key detention hearing at some much later time.” United States v.

Alatishe,

(D.C. Cir. 1985) (cleaned up).

The “legitimate and compelling” purpose of a detention hearing, Salerno. 481 U.S at 749,

is to determine whether “any condition or combination of conditions . . . will reasonably assure

the appearance of [the defendant] and the safety of . . . the community.”

(f). A

discretionary continuance allows the parties to “investigat[e facts] and prepar[e arguments” for the

detention hearing.” Zilversmit at 764; see S. Rep. No. 98-225, at 21–22 (1983) (continuance allows

the parties to “prepare adequately for the hearing”). This serves the statutory purpose. However,

an automatic continuance does not. An automatic continuance “does not require the government

to show how detention of an arrested person will protect the safety of the community or the

integrity of the judicial process by preventing flight or obstruction of justice. . . . In short, the

[three]-day detention may be wholly arbitrary.” Zilversmit at 785. That automatic continuances

“do[] not serve the stated goals of the statute[,]”

, favors courts interpreting § 3142(f)’s

continuance provision narrowly. See United States v. Cruz,

(9th Cir. 1995)

(construing a statute narrowly when Congress’s intent was not clear and statute was written

ambiguously). Indeed, if a “restriction of pretrial detention is . . . not reasonably related to a

legitimate goal—if it is arbitrary or purposeless—[then] a court permissibly may infer that the

purpose of the governmental action is punishment that may not constitutionally be inflicted upon

detainees qua detainees.” Bell,

.

The Bail Reform Act’s legislative history supports this Court’s rejection of an automatic

continuance reading. Specifically, the legislative history reveals that Congress based § 3142(f) on

10 a D.C. Code provision, as noted by the Senate Committee on the Judiciary’s Report (the

“Committee”):

Although a continuance may be necessary for either the defendant or the government to prepare adequately for the hearing, particularly if the defendant was arrested soon after the commission of the offense with which he is charged, the period of a continuance sought by the defendant and of one sought by the government is confined to five and three days, respectively, in light of the fact that the defendant will be detained during such a continuance. An extension of the continuance may be granted, however, for good cause. These time limitations are the same as those now incorporated in the pretrial detention provision of the District of Columbia Code.

S. Rep. No. 98-225, at 21–22. The D.C. Code’s pretrial detention provision required that all

continuances be predicated on a showing of “good cause.” See D.C. Court Reform & Criminal

Procedure Act of 1970,

23–1322(c)(3),

, 644 (1970)

(overhauling D.C. criminal code). In contrast, Congress only extended the “good cause”

requirement to continuances longer than three days when sought by the government or five days

when sought by the defendant. See § 3142(f)(2)(B).

On the one hand, the legislative history suggests that Congress did not intend to authorize

automatic continuances: “the Committee recognize[d that] a pretrial detention statute may

nonetheless be constitutionally defective if it fail[ed] to provide adequate procedural safeguards or

if it [did] not limit pretrial detention to cases in which it [was] necessary to serve the societal

interests it [was] designed to protect.” S. Rep. No. 98-225 at 8. On the other hand, Congress wrote

out the “good cause” requirement for three-day continuances by the government but “failed to

provide [an alternative] standard for judging [] requests for [such] continuances.”5 Zilversmit at

5 But Congress did not need to write one in as continuances already had a default standard— balance-of-hardships. See discussion infra Section II.B. This is opposite automatic continuances which exist nowhere in the wild. See supra note 2.

11 772. Nonetheless, the Committee contemplated limits on three-day continuances, as the reason the

Committee provided for them was “to [allow the parties to] prepare adequately for the hearing.”

S. Rep. No. 98-225 at 21–22. It stands to reason that if neither party needed additional time to

prepare adequately for the hearing, then a three-day continuance was impermissible. 6 See id.

Assuming that the legislative history is less than crystal clear—resulting in the ensuing

confusion of the past forty years—where a criminal statute is ambiguous, “the tie must go to the

defendant.” United States v. Santos,

(2008).

The Rule of Lenity

Where a “statute [is] ambiguous, the rule of lenity . . . require[s] a narrow construction.”

Singleton,

n.12 (citing Bifulco v. United States,

(1980)). “The

‘rule of lenity’ is a new name for an old idea—the notion that ‘penal laws should be construed

strictly.’” Wooden v. United States,

, 388 (2022) (Gorsuch, J. concurring) (quoting

The Adventure,

(No. 93) (CC Va. 1812) (Marshall, C.J.)). “It ‘places the weight

of inertia upon the party that can best induce Congress to speak more clearly,’ forcing the

government to seek any clarifying changes to the law rather than impose the costs of ambiguity on

presumptively free persons.”

at 1083 (quoting United States v. Santos,

(2008)

(plurality opinion)). “The rule applies to penalty provisions in criminal statutes and is appropriate

in bail proceedings as well.” Singleton,

n.12 (cleaned up).

The rule of lenity further supports this Court’s interpretation of Section 3142(f). Such an

interpretation is narrow: three-day continuances are available—instead of the default—subject to

6 Even if “the legislative history [] suggest[s] that the automatic continuances are available to facilitate preparation for a detention hearing, we do not believe that they should be used in wholesale fashion by prosecutors or courts forced to protect their detention positions as to a defendant they may never have heard of before that day.” United States v. Dominguez,

, 704–05 (7th Cir. 1986).

12 a judge’s discretion. And it appropriately places the burden on the government to induce Congress

to speak more clearly if Congress wanted otherwise. Because the interpretation of Section 3142(f)

conferring discretion to the judge is “more defendant-friendly” than the automatic continuance

definition, “the rule of lenity dictates that it should be adopted.” Santos,

.

B. Appropriate Standard for Granting a Continuance Under

(f)

“The statute explicitly requires that a 3142(f) hearing be conducted ‘immediately’

following a timely motion for pretrial detention, subject only to proper requests for continuances

by the parties.” Alatishe,

(emphasis added). Rejection of the automatic continuance

standard raises the question of what the appropriate standard is for a proper request. Cf. McFadden,

(incorporating a nexus requirement to the “imminent danger” exception to

the Prison Litigation Reform Act to protect the overarching rule).

One possibility is the “good cause” standard. Good cause is a “substantial reason . . . put

forward . . . in good faith and which [is] not arbitrary, irrational, unreasonable, irrelevant[,] or

capricious.” Warren v. U.S. Parole Comm’n,

(D.C. Cir. 1981) (cleaned up). But

Congress applied the good cause standard to requests by the government for continuances

exceeding three days. See

(f)(2)(B). “Where Congress includes particular

language in one section of a statute but omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”

Russello v. United States,

(1983) (cleaned up) (quoting United States v. Wong Kim

Bo,

(5th Cir. 1972)). Thus, the Court presumes that Congress did not intend to

apply the “good cause” standard to the government’s requests for continuances of up to three days.

If not good cause, then what? The answer is the default standard for continuance requests:

balance of hardships. See Herman & MacLean v. Huddleston,

(1983) (applying

13 the “preponderance-of-evidence standard generally applicable in civil actions” for Section 10(b)

of the 1934 Securities Exchange Act which lacked a statutory standard of proof); see also Doe v.

Kaiser, No. 6-cv-1045,

, at *8 (N.D.N.Y. July 9, 2007) (using the standard

which is “ordinarily applie[d] in connection with awards of punitive damages” to determine

whether punitive damages are warranted under a statute which “does not specify a standard”). “[I]n

ruling on motions for continuances trial judges must carefully evaluate and then balance [one

party’s] need for the continuance against the [other party’s] interest in going forward.” United

States v. Haldeman,

(D.C. Cir. 1976). “Because no firm rules can be articulated

as to when a continuance is required, the decision to grant a continuance is vested in the trial

judge’s discretion[.]”

But a judge’s discretion is “not boundless[,]” rather, “[t]he judge must

consider the justifications offered by the party seeking a continuance, balancing them against the

judicial system’s interest in expeditious proceedings.” Poston,

. Specifically, courts

weigh a variety of factors relating to the parties’ need “to prepare adequately for the hearing.” S.

Rep. No. 98-225 at 21–22. Factors include more time (1) “to obtain witnesses and affidavits[,]”

(2) to enable defense attorneys “to obtain interpreters and effectively interview their clients, and

[(3)] to permit the defense attorneys . . . an opportunity to visit their clients[.]” United States v.

Melendez-Carrion,

(2d Cir. 1986). At bottom, judges must balance “the burdens

that would be placed on [the defendant,] the [g]overnment[,] and the court if the request were

granted.” Haldeman,

.

C. Applying the Default “Balance of Hardships” Standard Here

After applying the balance-of-hardships standard, the Court denied the government’s

request for a continuance. First, the government failed to provide any reason that made a

continuance proper. The only hardship cited by the government was nonexistent: that a

14 continuance would have given Mr. McLean more time to receive discovery to prepare for the

hearing. See Initial Appearance at 2:41:01. But Mr. McLean passed on this magnanimous offer as

he concluded he was adequately prepared to proceed immediately. See

at 3:19:52.

Mr. McLean’s need for discovery and how that related to his preparedness was Mr. McLean’s

concern, not the government’s. See

The government had multiple opportunities to raise other

grounds for a continuance—such as to “investigat[e] and prepar[e,]” Zilversmit at 764—but it did

not.7 Second, the hardship to Mr. McLean was profound. The three-day continuance deprived him

of his liberty and threatened his employment, i.e., his livelihood. See Salerno,

.

Finally, this Court was prepared to move forward with the detention hearing “immediately.”

(f)(2)(B). Taken together, the balance of hardships weighed entirely against granting

a continuance.

III. CONCLUSION

It is time to leave the bad place.

Digitally signed by Zia M.

Date: September 23, 2024 Zia M. Faruqui Faruqui Date: 2024.09.23 11:35:03 -04'00' ___________________________________ ZIA M. FARUQUI UNITED STATES MAGISTRATE JUDGE

7 To the extent the government requested more time to draft a detention memorandum, this too was unavailing. Detention memoranda are largely for the court’s benefit. This Court was prepared to proceed without a detention memorandum, mooting it as a basis for a continuance. See Initial Appearance at 2:40:46.

15