UNITED STATES v. CALDERON CHAVEZ (2023)

MEMORANDUM OPINION AND ORDER

Defendant Brayan Calderon-Chavez moves to dismiss the criminal charges against him based on:

(1) The Due Process Clause of the Fifth Amendment to the U.S. Constitution;

(2) The Speedy Trial Act;

(3) The Sixth Amendment's Speedy Trial Clause; and

(4) The Insanity Defense Reform Act (“IDRA”).1

Although the Court is still researching and evaluating Defendant's arguments under the Speedy Trial Act, the Sixth Amendment, and IDRA, the Court has determined that Defendant's lengthy pre-hospitalization detention is a due process violation that the Court must remedy immediately.

I. BACKGROUND

The Government has charged Defendant with Attempted Illegal Reentry and False Personation in Immigration Matters.² Those charges can't go forward at the moment because the Court has found Defendant incompetent to stand trial.³ Thus, in accordance with § 4241(d)(1) of IDRA (which the Court discusses in detail below),⁴ the Court issued an order on November 18, 2022 committing Defendant to the Attorney General's custody “to be hospitalized in a suitable facility for such a reasonable period of time, not to exceed four (4) months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward.”⁵

Nine months have passed since the Court issued that Commitment Order, yet the Government still hasn't admitted Defendant to a psychiatric facility. Defendant has instead “remain[ed] in U.S. Marshal Service custody at the West Texas Detention Center in Sierra Blanca, Texas” the entire time.⁶ The reason for that delay, according to the Government, is that the few Bureau of Prisons (“BOP”) facilities that perform competency restoration services are experiencing an ever-lengthening backlog, and there's consequently no vacant space at any of those facilities.⁷

Back in July, the Government informed the Court that Defendant would likely “be transferred to” a BOP facility that performs competency restoration treatment—specifically, FMC Butner—“in mid-August.”⁸ It is now mid-August, yet Defendant still hasn't been admitted to Butner or any other psychiatric facility. The U.S. Marshals Service anticipates that Defendant will leave his current detention facility on August 22, 2023 and arrive at Butner on September 5, 2023 after weeklong layovers in Oklahoma and Georgia. The Court's understanding, however, is that BOP can't necessarily guarantee that it will admit Defendant to one of its psychiatric facilities by September 5th. Among other reasons for potential additional delays, BOP could conceivably push Defendant farther down the waitlist if another inmate experiences a psychiatric emergency that necessitates immediate hospitalization.⁹

II. DISCUSSION

Defendant argues that this lengthy pre-hospitalization detention violates his due process rights, and that the Court must therefore dismiss the Indictment.¹⁰ Although the Court agrees that the delay has violated Defendant's due process rights,¹¹ the proper remedy for that constitutional violation is not to dismiss the Indictment—at least not yet. The Court will instead order the Government to admit Defendant to a suitable psychiatric facility in accordance with the current anticipated transportation timeline—upon pain of potential dismissal.

A. The Supreme Court's Decision in Jackson v. Indiana

In its 1972 opinion in Jackson v. Indiana, the Supreme Court held that “indefinite commitment of a criminal defendant solely on account of his incompetency to stand trial does not square with the [U.S. Constitution's] guarantee of due process.”¹² “[D]ue process [instead] requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.”¹³ Thus, “a person charged ․ with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.”¹⁴

B. Background on IDRA

In 1984, Congress passed IDRA to (among other things) amend the federal commitment statute to conform with Jackson’s due process holding.¹⁵ Section 4241(d) of IDRA specifies what the district court and the Government must do when a criminal defendant is “suffering from a mental disease or defect rendering him mentally incompetent” to stand trial: The court must “commit the defendant to the custody of the Attorney General,” who must in turn “hospitalize the defendant for treatment in a suitable facility.”¹⁶ Under § 4241(d)(1), that initial period of hospitalization may only last “for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward.”¹⁷

If the court finds at the end of the § 4241(d)(1) hospitalization period “that there is a substantial probability that” the defendant “will attain the capacity to permit the proceedings to go forward” within a “reasonable period of time,” § 4241(d)(2) authorizes the court to commit the defendant to a subsequent period of hospitalization.¹⁸ That additional period of hospitalization may only last for a “reasonable period of time until” either

(A) the defendant's “mental condition is so improved that trial may proceed;” or

(B) “the pending charges against” the defendant “are disposed of according to law.”19

C. Excessive Pre-Hospitalization Delays May Violate a Defendant's Due Process Rights

In this case, the Court has committed Defendant for an initial period of hospitalization under § 4241(d)(1).²⁰ Again, though, that period of hospitalization hasn't yet begun because of the lack of vacancies at BOP's psychiatric facilities.²¹ Thus, this case doesn't present exactly the same issue as Jackson; whereas the defendant in Jackson challenged his prolonged, indefinite confinement in a psychiatric facility,²² Defendant hasn't even reached a psychiatric facility yet. He's instead challenging his prolonged detention while waiting to be transferred to such a facility.²³ As far as the Court is aware, neither the Supreme Court nor the Fifth Circuit has yet decided whether Jackson imposes comparable constitutional limitations on pre-hospitalization delays.

Many other courts have concluded, however, that Jackson’s holding that an incompetent defendant “cannot be held more than the reasonable period of time necessary to determine” the likelihood he will regain competency ²⁴ does indeed limit the time the Government may detain a defendant while he waits for a space at a hospital.²⁵ These courts hold that, to comport with due process, any “period of pre-hospitalization detention ․ must be reasonable” in relation to its purpose.²⁶ Multiple courts have therefore held that a pre-hospitalization delay that exceeds eight months ²⁷ —which is more than twice as long as the maximum four-month hospitalization period under § 4241(d)(1)²⁸ —bears no reasonable relation to the purpose for which the defendant is committed and therefore violates the defendant's due process rights.²⁹

This Court agrees that Jackson’s holding “that the nature and duration of” a defendant's confinement must “bear some reasonable relation to the purpose for which the individual is committed” applies equally to pre-hospitalization delays.³⁰ The Court further finds that the nature of Defendant's extended confinement here bears no reasonable relation to the reason for committing him. The Court explicitly ordered that Defendant “be ․ committed to the Custody of the Attorney General” for the purpose of “hospitaliz[ing him] in a suitable facility” and “determin[ing] whether there is a substantial probability that in the foreseeable future he will” become competent.³¹ Keeping Defendant in a nonmedical detention facility without access to competency restoration services does nothing to “permit the proceedings to go forward.”³²

Nor does the duration of Defendant's lengthy pre-hospitalization confinement bear any reasonable relation to its purpose. The purpose of the “pre-hospitalization commitment period ․ is simply to identify an appropriate treatment facility and arrange for the defendant's transportation to that facility.”³³ While some amount of delay undoubtedly advances that purpose, a nine-month period of inactivity does not.³⁴ The Court thus follows the weight of authority holding that the nine-month pre-hospitalization delay that Defendant has endured here violates the Due Process Clause.³⁵

D. The Government's Authorities Don't Stand for the Contrary Proposition

The cases the Government cited in the section of its brief responding to Defendant's due process arguments don't support the contrary conclusion.³⁶ Most of those cases either don't mention due process at all ³⁷ or exclusively use the phrase in an unrelated context.³⁸ Only two of those cases analyze constitutional due process issues in any depth. One of those cases is readily distinguishable because it involved a much less egregious pre-hospitalization delay.³⁹ The remaining case—the Second Circuit's opinion in United States v. Magassouba—is distinguishable too, but for reasons that require greater explication.

In Magassouba, the district court issued an order on October 13, 2004 finding the defendant incompetent and committing him for hospitalization under IDRA § 4241(d)(1).⁴⁰ Due to an administrative mishap, however, the U.S. Marshals Service didn't receive that order until November 24, 2004.⁴¹ Consequently, the Marshals didn't transport the defendant to a BOP hospital until December 22, 2004—approximately 21/212 months after the district court issued its commitment order.⁴²

The defendant completed his initial period of hospitalization on May 12, 2005, at which point the Marshals transported him to a nonmedical detention facility.⁴³ Then, after a year's worth of proceedings that this Court need not describe in detail,⁴⁴ the district court issued an order on May 10, 2006 committing the defendant for a second period of hospitalization under § 4241(d)(2) and authorizing the Government to medicate the defendant involuntarily.⁴⁵ The defendant filed an interlocutory appeal challenging the § 4241(d)(2) order and asking the Second Circuit to dismiss the indictment.⁴⁶

In the portion of Magassouba that the Government cites in its Response,⁴⁷ the Second Circuit rejected the defendant's argument that the 21/212 months he spent in the Marshals’ custody while awaiting admittance to a psychiatric facility counted against § 4241(d)(1)’s four-month maximum.⁴⁸ The Second Circuit reasoned that § 4241(d)(1)’s four-month clock doesn't begin when the district court issues its commitment order, but rather begins when the defendant finally arrives at the hospital.⁴⁹

Because Defendant hasn't yet arrived at a psychiatric facility, the Government argues that § 4241(d)(1)’s four-month clock hasn't started running under Magassouba, and thus that the nine-month transportation delay here doesn't violate IDRA.⁵⁰ The Government then appears to make the logical leap that if Defendant can't prove a violation of IDRA, then he can't prove a due process violation either.⁵¹

As Defendant correctly observes,⁵² though, the question of whether Defendant's extended pre-hospitalization detention violates IDRA is distinct from whether that detention violates his due process rights. Governmental action (or, as in this case, inaction) can violate the Constitution even if it's perfectly consistent with applicable statutes.⁵³ Several courts have therefore “recognized that even if the IDRA does not limit the time that a defendant can be held while awaiting transfer to a hospital”—an issue this Court does not now decide ⁵⁴ —“extended custody for th[at] purpose may [nonetheless] violate due process.”⁵⁵ The Government's cases bearing on whether Defendant's extended pre-hospitalization confinement violates IDRA thus don't foreclose Defendant's entirely separate due process challenge.⁵⁶

If anything, Magassouba actually supports Defendant's due process arguments. Besides arguing that his extended confinement violated IDRA, the defendant in Magassouba also argued that “[t]he nineteen-month period [he] spent in BOP custody from October 13, 2004, when he was found incompetent, to May 10, 2006, when the court entered the challenged § 4241(d)(2) order,” was unreasonable under the Due Process Clause.⁵⁷ The Second Circuit ultimately rejected the defendant's due process challenge—primarily because most of the delay was attributable to the defendant's refusal to take medication that might have restored his competency.⁵⁸ In arriving at that conclusion, however, the Second Circuit also held that “once a defendant is found incompetent, continued confinement while the parties and the court assess his ability to regain competency must comport with reasonable time limitations of due process, regardless of whether that confinement involves custodial hospitalization pursuant to § 4241(d) or general detention ․”⁵⁹ Thus, when assessing “whether further commitment beyond” the district court's May 20, 2006 order committing the defendant to an additional hospitalization period “was so unreasonable as to violate due process,” the Second Circuit didn't just consider the time the defendant spent in the psychiatric facility during his initial hospitalization period; it instead considered “the totality of [the defendant]’s ․ confinement” between “October 13, 2004, when he was found incompetent, to May 10, 2006.”⁶⁰

The Court agrees with the Second Circuit that the entirety of Defendant's confinement—whether in a nonmedical detention facility or a psychiatric hospital—“must comport with reasonable time limitations of due process.”⁶¹ But unlike the defendant in Magassouba, Defendant here hasn't languished in prison for reasons largely of his own making;⁶² the delay is instead attributable to the executive and legislative branches’ failure to allocate sufficient resources to promptly admit incompetent criminal defendants to psychiatric facilities as IDRA requires.⁶³ Magassouba therefore supports rather than undercuts the Court's inclination to follow the weight of authority and hold that the Constitution limits not just the time the Government may confine a defendant in a psychiatric facility, but also the length of any adjacent periods of confinement in a nonhospital setting.

The Court also acknowledges that the Second Circuit held that the 21/212-month “transport delay[ ]” that the defendant in Magassouba experienced before BOP admitted him to the hospital was “not so egregious as to deny [him] due process.”⁶⁴ Again, though, that 21/212-month delay pales in comparison to the nine-month delay Defendant has experienced here.

In sum, nothing in Magassouba casts any doubt on the Court's conclusion that the nine-month delay in hospitalizing Defendant violates his due process rights.⁶⁵

E. Other Contrary Authorities Are Distinguishable or Unpersuasive

Besides reviewing the Government's cited authorities, the Court has also performed its own independent research and located several cases that have rejected due process challenges in similar contexts. Most of those cases are readily distinguishable because they involved much shorter pre-hospitalization delays.⁶⁶ The cases that aren't distinguishable, meanwhile, are unpersuasive.

1. Cases Holding that Lengthy Pre-Hospitalization Delays Don't Contravene Due Process if the Government is Simultaneously Detaining the Defendant For Reasons Unrelated to his Competency

For instance, one line of non-binding authorities suggests that a prolonged period of pre-hospitalization detention may not violate due process if the Government is simultaneously detaining the defendant under 18 U.S.C. § 3142 ⁶⁷ for some other reason unrelated to his competency—for instance, because he is a flight risk or a danger to the community.⁶⁸ These authorities suggest that “where a defendant is detained for some reason other than their [sic] incapacitation, a brief delay ⁶⁹ caused by logistical difficulties or even error is not unreasonable and does not result in any violation of the defendant's due process rights.”⁷⁰

In this case, U.S. Magistrate Judge Anne T. Berton concluded two months before I found defendant incompetent that “no condition or combination of conditions of release” would “reasonably assure the safety of ․ the community” or “reasonably assure ․ [D]efendant's appearance” at trial.⁷¹ Judge Berton thus issued an order remanding Defendant to the Government's custody for pretrial detention under § 3142.⁷² Thus, if the Court followed the authorities described in the preceding paragraph, the Court would have to reject Defendant's due process challenge because the Government is detaining Defendant not just because he's incompetent and awaiting hospitalization, but also because the Court has declared him a flight risk and a danger to the community.⁷³

Respectfully, however, the Court finds those authorities unpersuasive. Almost all of those cases base their conclusions on the following language from Jackson:⁷⁴ “Without a finding of dangerousness, one committed ․ can be held only for a ‘reasonable period of time’ necessary to determine whether there is a substantial chance of his attaining the capacity to stand trial in the foreseeable future.”⁷⁵ These courts apparently infer from that language that if the district court does find the defendant dangerous, then the Government may confine the defendant for a length of time that otherwise wouldn't be “reasonable” under the Due Process Clause.⁷⁶

Those decisions take that language out of context. When one reads the surrounding paragraphs of the opinion, it becomes clear that the Supreme Court was describing how, to avoid potential constitutional infirmities, lower federal courts had construed the pre-IDRA version of the federal competency statute (which, unlike the current version of § 4241(d)(1), didn't impose a numerical cap on the maximum duration of the defendant's commitment)⁷⁷ to “require that a mentally incompetent defendant ․ be found ‘dangerous’ before he c[ould] be committed indefinitely.”⁷⁸ Jackson nowhere suggests that, so long as a district court declares a defendant “dangerous” before committing him for competency restoration treatment, the Government may dawdle for a time period that would otherwise be constitutionally unreasonable before it obeys the court's command to admit the defendant to a hospital.⁷⁹ Indeed, such a conclusion would be inconsistent with Jackson’s pronouncement that “due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.”⁸⁰

The Court recognizes that one might interpret other language in Jackson—such as the Supreme Court's statement that the “indefinite commitment of a criminal defendant solely on account of his incompetency to stand trial does not square with the [constitutional] guarantee of due process”⁸¹ —to permit the Government to indefinitely confine a defendant who is also detained for some other reason in addition to his incompetency. But the Second Circuit rejected that reading of Jackson in Magassouba, and this Court finds the Second Circuit's rationale persuasive. As noted, the defendant in Magassouba argued that “the nineteen-month period [he] spent in BOP custody from October 13, 2004, when he was found incompetent, to May 10, 2006, when the court entered the challenged § 4241(d)(2) order,” was so unreasonably long as to violate his due process rights.⁸² The Second Circuit acknowledged that, “for much of th[at] time,” the defendant “was not confined solely to evaluate the probability of his regaining competency;” “[h]e was also detained pursuant to ․ 18 U.S.C. § 3142[ ] as a risk of flight and danger to the community.”⁸³ But the Second Circuit didn't hold that Jackson’s “solely on account of [the defendant's] incapacity to proceed to trial” language foreclosed the defendant's due process challenge.⁸⁴ To the contrary, the court held that “once a defendant is found incompetent, continued confinement while the parties and the court assess his ability to regain competency must comport with the reasonable time limitations of due process, regardless of whether that confinement involves custodial hospitalization pursuant to § 4241(d) or general detention pursuant to § 3142.”⁸⁵ Were the rule otherwise, the Second Circuit reasoned, then “§ 3142 could itself become the vehicle for doing what the Due Process Clause proscribes: subjecting incompetent defendants to indefinite commitment.”⁸⁶ The Magassouba court therefore considered “the totality of [the defendant's] confinement” when assessing whether the defendant's continued commitment would be “so unreasonable as to violate due process”—without excluding the time the defendant spent in general pretrial detention pursuant to the district court's finding under § 3142 that he was “a risk of flight and danger to the community.”⁸⁷

This Court agrees with that portion of Magassouba and adopts the Second Circuit's reasoning as its own.⁸⁸ Thus, the fact that the Government is detaining Defendant partly because he is awaiting hospitalization and partly because the Court has deemed him a danger to the community doesn't shield his protracted pre-hospitalization detention from scrutiny under the Due Process Clause.⁸⁹

2. Cases Holding that Jackson Doesn't Apply to Pre-Hospitalization Delays

Finally, at least one other non-binding contrary authority appears to reject the premise that Jackson applies to pre-hospitalization delays at all.⁹⁰ In United States v. Easterling, the U.S. District Court for the Southern District of Mississippi found the defendant incompetent and committed him for hospitalization under § 4241(d)(1).⁹¹ Due to an “oversight,” the Marshals didn't immediately transfer the defendant to a psychiatric facility; he instead remained in a nonmedical detention center for more than seven months.⁹² Invoking Jackson, the defendant moved to dismiss the indictment on due process grounds.⁹³

The court denied the motion.⁹⁴ It first distinguished Jackson on the ground that the defendant was “still awaiting hospitalization.”⁹⁵ The court thus reasoned that the case did “not involve a prolonged commitment” within the meaning of Jackson; it instead “involve[d] an unfortunate and prolonged delay in moving the defendant to the appropriate facility.”⁹⁶

The court then rejected the defendant's argument that the seven-month delay amounted to “indefinite commitment” under Jackson.⁹⁷ The defendant's commitment was not “indefinite,” the court reasoned, because whenever he ultimately reached a psychiatric facility for hospitalization under § 4241(d)(1), the time he spent at that hospital wouldn't exceed § 4241(d)(1)’s four-month maximum.⁹⁸

Easterling’s conclusion that Jackson’s reasonableness requirement doesn't apply to pre-hospitalization delays is against the weight of authority.⁹⁹ Respectfully, the Court also finds it unpersuasive. I concede that it is perhaps inaccurate to describe Defendant's commitment in this case as “indefinite”—the Marshals have provided a date by which they anticipate transporting Defendant to a BOP facility, and once Defendant reaches that facility, he won't be there more than four months (subject to the possibility that the Court may order an additional period of hospitalization under § 4241(d)(2)).¹⁰⁰ But Jackson doesn't just hold that the Government can't “indefinite[ly] commit[ ] ․ a criminal defendant solely on account of his incompetency to stand trial;”¹⁰¹ it also stands for the more general proposition that “the nature and duration of” any such commitment must “bear some reasonable relation to the purpose for which the individual is committed.”¹⁰² As courts have recognized, that broader constitutional principle goes beyond merely prohibiting indefinite psychiatric commitment once the defendant finally reaches a BOP hospital.¹⁰³

The Court thus declines to follow Easterling. The Court instead follows the weight of authority holding that Jackson applies to pre-hospitalization delays, and that a delay of the length Defendant has endured here violates the Due Process Clause.¹⁰⁴

F. The First Step to Cure Such Violations is to Order the Government to Admit the Defendant to a Psychiatric Facility by a Specified Deadline—Not to Dismiss the Indictment

Nevertheless, courts have also uniformly held that the remedy for such due process violations is not to dismiss the indictment as Defendant requests in his Motion—at least not right away.¹⁰⁵ Courts have instead unanimously agreed that the first step is to order the Government to admit the defendant to a psychiatric facility by a specified date.¹⁰⁶ Only if the Government misses that deadline may it then be appropriate to dismiss the indictment.¹⁰⁷

On this issue too, the Court follows the weight of authority.¹⁰⁸ Thus, instead of dismissing the Indictment as a first resort, the Court will order the Government to hospitalize the Defendant in a suitable facility under § 4241(d)(1) by September 8, 2023.

The Court recognizes that, even in the absence of this Memorandum Opinion and Order, the Marshals already anticipate that Defendant will arrive at a BOP-operated hospital by September 5, 2023. One might therefore wonder why the Court deems it necessary to issue this order requiring the Government to abide by the existing transportation schedule. The reason is that, in at least one other case involving a comparable pre-hospitalization delay, the Government failed to admit the defendant by the date it originally promised the Court.¹⁰⁹ The Court thus deems it necessary to issue this Order holding the Government to the existing schedule. However, rather than require the Government to admit Defendant on his projected September 5, 2023 arrival date, the Court will give the Government until the end of that week to account for the vagaries of transportation.

III. CONCLUSION

The Court therefore RESERVES RULING on “Defendant's Motion to Dismiss” (ECF No. 22) for the time being.

The Court instead ORDERS the Government to ADMIT Defendant to a psychiatric facility in accordance with the Court's “Order of Commitment Pursuant to 18 U.S.C. § 4241(d)” (ECF No. 20) by September 8, 2023.

If the Government cannot or does not do so by that deadline, the Court WILL CONSIDER DISMISSING the Indictment.

If, however, the Government timely complies with this Order, Defendant's due process challenge will become moot,¹¹⁰ and the Court will then rule on Defendant's remaining Speedy Trial Act, Sixth Amendment, and IDRA challenges.

The Clerk of Court shall TRANSMIT this Memorandum Opinion and Order to the responsible personnel at the U.S. Marshals Service and the Bureau of Prisons.

So ORDERED and SIGNED this 18th day of August 2023.

FOOTNOTES

1.   See generally Mot., ECF No. 22.

2.   Indictment, ECF No. 10.

3.   Commitment Order, ECF No. 20, at 1. Page citations in this Memorandum Opinion and Order refer to the page numbers assigned by the Court's CM/ECF system rather than the cited document's internal pagination.

4.   See 18 U.S.C. § 4241(d)(1); see also infra notes 16–17 and accompanying text.

5.   Commitment Order at 1.

6.   Mot. at 3; see also Resp., ECF No. 24, at 3 (Government's concession that, as of July 13, 2023, Defendant had “been in [the] United States Marshal's custody approximately seven months awaiting designation to a ․ hospital for psychiatric evaluation and treatment to restore his competency”).

7.   See Resp. at 3 (“There are four [BOP] facilities operating as both outpatient and inpatient forensic sites and conduct [sic] forensic evaluations under [IDRA]․ Those sites are the only [BOP] facilities that conduct competency restoration. The wait time for ․ evaluation and restoration treatment has averaged four to six months but according to the U.S.Marshal's [sic] Service has increased of late. Obviously the number of court[-]ordered individuals awaiting evaluation and restoration, the number of bed spaces, and staffing levels contribute to the delays.”).

8.   Id.

9.   See, e.g., United States v. Lara, No. 1:21-cr-01930, 2023 WL 3316274, at *1–2 (D.N.M. May 5, 2023) [hereinafter Lara II] (explaining that BOP cannot “guarantee that [any particular defendant] will be admitted” by a specified date because another defendant may “experienc[e] severe medical or psychological decompensation” and thereby take priority on the waitlist).

10.   See Mot. at 3, 7, 10; Reply, ECF No. 27, at 1–2, 6–7.

11.   Again, the Court does not now decide whether that delay also violates IDRA, the Speedy Trial Act, or the Sixth Amendment.

12.   406 U.S. 715, 731, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972).Jackson considered whether the Fourteenth Amendment's Due Process Clause authorizes a State to commit an incompetent defendant indefinitely. See id.; see also U.S. Const. amend XIV, § 1 (“No State shall ․ deprive any person of life, liberty, or property, without due process of law ․” (emphasis added)). The federal government, by contrast, is governed by the Fifth Amendment's Due Process Clause. See U.S. Const. amend V (“No person shall ․ be deprived of life, liberty, or property, without due process of law ․”); see also, e.g., Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th 226, 236 (5th Cir. 2022) (“[T]he Fifth Amendment Due Process Clause limits the federal government, while the Fourteenth Amendment Due Process Clause limits the states.”). Nonetheless, Jackson’s holding applies to the federal government and the States alike. See, e.g., United States v. Ceasar, 30 F.4th 497, 502 n.3 (5th Cir. 2022) (citing Jackson for legal propositions pertaining to “[t]he Fifth Amendment Due Process Clause” (emphasis added)).

13.   406 U.S. at 738, 92 S.Ct. 1845.

14.   Id.

15.   Insanity Defense Reform Act of 1984, Pub. L. No. 98-473, §§ 401–406 (1984); S. Rep. No. 98-225, at 236 (1983) (“In accord with the Supreme Court's holding in Jackson v. Indiana, commitment under section 4241 [of IDRA] may only be for a reasonable period of time necessary to determine if there exists a substantial probability that the person will attain the capacity to permit the trial to go forward in the foreseeable future.” (emphasis added)); see also, e.g., United States v. Magassouba, 544 F.3d 387, 403 (2d Cir. 2008) (noting that “Congress enacted 18 U.S.C. § 4241” to “[r]espond[ ] to [the] due process concerns identified in Jackson v. Indiana”).

16.   18 U.S.C. § 4241(d).

17.   Id. § 4241(d)(1) (emphasis added).

18.   Id. § 4241(d).

19.   Id.

20.   See Commitment Order at 1.

21.   Resp. at 3.

22.   See 406 U.S. at 738, 92 S.Ct. 1845 (noting that the defendant had “been confined [in a psychiatric facility] for three and one-half years”).

23.   See, e.g., Mot. at 1 (“Instead of being transferred to [a psychiatric facility], [Defendant] has been held for nearly seven months by the Marshals Service while he awaits transfer.”).

24.   Jackson, 406 U.S. at 738, 92 S.Ct. 1845.

25.   See, e.g., United States v. Lara, ––– F. Supp. 3d ––––, 2023 WL 3168646, at *4 (D.N.M. Apr. 28, 2023) [hereinafter Lara I] (noting that “several other courts” have ruled that “Jackson’s reasonableness mandate applies to the pre-hospitalization custody period of a defendant awaiting competency restoration treatment”); United States v. Raja, No. 1:21-cr-00368, 2023 WL 3497234, at *3 (S.D. Ind. May 17, 2023) (“This Court agrees that, under Jackson, the amount of time a defendant is held after a commitment order cannot be indefinite and must bear a reasonable relation to the purpose of the commitment.”); United States v. Donnelly, 41 F.4th 1102, 1106 (9th Cir. 2022) (“The Constitution does not permit any portion of a defendant's commitment under [IDRA] to last indefinitely. Although Congress did not provide a specific time limit for a pre-hospitalization commitment period [in IDRA], Jackson requires the duration of any such commitment to ‘bear some reasonable relation’ to its purpose.” (quoting Jackson, 406 U.S. at 738, 92 S.Ct. 1845)); United States v. Wazny, No. 3:21-CR-247, 2022 WL 17363048, at *6 (M.D. Pa. Dec. 1, 2022) (taking guidance from “the Supreme Court's decision in Jackson” and concluding that a pre-hospitalization period's duration “must bear some reasonable relation to its purpose” (cleaned up)).

26.   Lara I, ––– F.Supp.3d at ––––, 2023 WL 3168646, at *5 (quoting Donnelly, 41 F.4th at 1106); see also, e.g., United States v. Leusogi, No. 2:21-CR-32, 2022 WL 16855426, at *2 (D. Utah Nov. 10, 2022) [hereinafter Leusogi II] (“An unreasonable or unjustified period of [pre-hospitalization] detention implicates the [d]efendant's due process rights and is therefore of constitutional dimensions.”); United States v. Castrellon, No. 22-cr-00112, 2023 WL 2330688, at *3 (D. Colo. Mar. 1, 2023) [hereinafter Castrellon I] (opining that “delays of four, six, or eight months in designating defendants to a medical facility strain the bounds of what can be deemed ‘reasonable’ periods of detention under Jackson”).

27.   The Court does not purport to establish a bright-line rule, such that all delays shorter than eight months pass constitutional muster and all delays exceeding eight months violate due process. The Court merely concludes that the nine-month delay here has violated Defendant's due process rights. See, e.g., Wazny, 2022 WL 17363048, at *5 (“[W]hile this Court declines to set forth a bright-line time period of pre-hospitalization custody after which the detention becomes presumptively unreasonable, the Court agrees ․ that eight[ ] months ․ [is not] a ‘reasonable period of time.’ ”); Magassouba, 544 F.3d at 416 (“[T]he Constitution itself draws no bright lines signaling when an incompetent defendant's continued detention to restore competency becomes unreasonable.”); cf. Jackson, 406 U.S. at 738, 92 S.Ct. 1845 (“[W]e do not think it appropriate for us to attempt to prescribe arbitrary time limits.”).

28.   See, e.g., Donnelly, 41 F.4th at 1106 (“[The defendant] has now been held in the pre-hospitalization custody of the Attorney General for more than eight months—twice as long as the maximum period Congress authorized for the entire length of a defendant's hospitalization.”).

29.   Lara I, ––– F.Supp.3d at ––––, 2023 WL 3168646, at *5 (“[A] detention period of eight months is unreasonable and runs afoul of the Constitution's guarantee of due process.” (quoting Donnelly, 41 F.4th at 1106); Raja, 2023 WL 3497234, at *5–6 (“[T]he now nearly nine-month wait that Mr. Raja has endured (let alone the wait to which he would be subject if he remains in custody without transport until November 2023) is longer than a wait that bears a reasonable relation to the purpose of his detention․ The Court holds that the delayed transportation to a suitable facility has amounted to a due process violation.”); Wazny, 2022 WL 17363048, at *5 (“[W]hile the time limit within which a defendant must be admitted to a suitable facility is not fixed, eight months facially offends basic due process principles and is presumptively unreasonable.”).Cf. Donnelly, 41 F.4th at 1106–07 & n.3 (reaching similar conclusion, but appearing to base that holding on IDRA as interpreted in light of constitutional due process principles, rather than on the Due Process Clause by itself); Leusogi II, 2022 WL 16855426, at *3 (similar); Order at 5, United States v. Castrellon, No. 1:22-cr-00112 (D. Colo. May 12, 2023), ECF No. 68 [hereinafter Castrellon II] (similar).

30.   Cf. 406 U.S. at 738, 92 S.Ct. 1845; see also supra notes 25–26 and accompanying text.

31.   Commitment Order at 1.

32.   Contra id.; see also, e.g., Leusogi II, 2022 WL 16855426, at *3 (“Continuing to incarcerate the [d]efendant for an indeterminate period, during which he is not receiving restorative treatment[,] is contrary to the Court's orders and the requirements of the IDRA․ The proceedings may not move forward until restoration efforts are completed.”).

33.   Donnelly, 41 F.4th at 1106; accord Lara I, ––– F.Supp.3d at ––––, 2023 WL 3168646, at *5; Wazny, 2022 WL 17363048, at *6.

34.   See, e.g., Raja, 2023 WL 3497234, at *5 (“[I]t would be eminently reasonable for the Government to expend time ascertaining the best facility for Mr. Raja's restoration, completing paperwork, and physically transporting him safely ․ However, this wait where Mr. Raja remains no better than twenty-second in line after an eight-month wait demonstrates that the Government has failed to provide a process by which incompetent defendants have access to the statutorily-mandated restoration services within a reasonable time․ [I]t is clear that the now nearly nine-month wait that Mr. Raja has endured ․ is longer than a wait that bears a reasonable relation to the purpose of his detention.”).

35.   See supra note 29 and accompanying text.

36.   See Resp. at 4-6.

37.   See United States v. Blakney, No. 4:19-cr-00862, 2021 WL 3375514, at *1–2 (D.S.C. Aug. 3, 2021); Order, United States v. Martikainen, No. 1:19-cr-128 (W.D.N.C. Sept. 1, 2020), ECF No. 28 [hereinafter Martikainen]; United States v. Villegas, 589 F. App'x 372, 373–74 (9th Cir. 2015).

38.   See United States v. Tucker, No. 1:17CR221, 2021 WL 6197065, at *5 n.6 (M.D.N.C. Dec. 31, 2021), aff'd, 60 F.4th 879 (4th Cir. 2023) (mentioning “a due process involuntary medication hearing” in passing).

39.   See United States v. Wills, No. 2:18-cr-00289, 2020 WL 53850, at *4 (S.D. W. Va. Jan. 3, 2020) (“The court finds that the four months or so delay in getting the defendant to the facility for evaluation in this case is reasonable in light of similar current demands on the federal prison system for such evaluations.” (emphasis added)); but see id. (“That is not to suggest that any delay, regardless of length, is acceptable or constitutionally permissible.”).

40.   544 F.3d at 394–95.

41.   Id. at 395.

42.   Id.

43.   Id. at 395–96, 410.

44.   See id. at 396–99.

45.   Id. at 399.

46.   Id. at 391.

47.   See Resp. at 6.

48.   544 F.3d at 412–14.

49.   See id. at 412 (rejecting defendant's argument that “the period from October 13, 2004 to December 22, 2004, when he was admitted to Butner” counted “as § 4241(d)(1) custody” for the purposes of the statutory four-month limit).The Second Circuit nevertheless concluded that the defendant's hospitalization exceeded § 4241(d)(1)’s four-month maximum because it lasted for four months and three weeks. Id. at 410. The court concluded, however, that the violation was harmless and didn't warrant dismissing the indictment. Id. at 410–15. That aspect of Magassouba has little bearing on the instant case because Defendant hasn't even arrived at a BOP hospital yet.

50.   See Resp. at 4–6.

51.   See id. at 4 (asserting that Defendant's “due process argument ․ relies on a mistaken interpretation of § 4241(d)” and perfunctorily dismissing it as “meritless” for that reason alone).

52.   See Reply at 7 (“Whether the statutory four-month period begins at the time of the Court's order, or arrival at the BOP facility, is irrelevant to whether the Constitution permits an unconvicted person to simply languish indefinitely in Marshal custody, awaiting transfer.”).

53.   Cf. Chilcutt v. United States, 4 F.3d 1313, 1327 (5th Cir. 1993) (“It goes without saying that any rule which violates the Constitution, even if authorized by federal statutes, must be struck down.”).

54.   The Court needs to perform more research and analysis before it takes a position on that question. See, e.g., United States v. Vanarsdale, No. 22-10103, 2023 WL 5094011, at *2 (D. Kan. Aug. 9, 2023) (describing the split of authority over whether IDRA's four-month clock starts (1) when the court issues its commitment order or (2) when the defendant arrives at the psychiatric facility); United States v. Leusogi, No. 2:21-CR-32, 2022 WL 11154688, at *2 (D. Utah Oct. 19, 2022) [hereinafter Leusogi I] (same).

55.   E.g., Leusogi I, 2022 WL 11154688, at *2 (cleaned up) (emphasis added) (quoting United States v. Carter, No. 17-CR-190, 2019 WL 9410160, at *1 (E.D. Wis. Oct. 16, 2019), report and recommendation adopted by 2020 WL 1620530 (E.D. Wis. Apr. 1, 2020)).

56.   See also Blakney, 2021 WL 3375514, at *1–2 (holding—without mentioning or analyzing the Due Process Clause—“that the four-month period mandated by § 4241(d)(1) encompasses the defendant's hospitalization, not the time it takes to transport him to the medical facility”); Villegas, 589 F. App'x at 373 (concluding—again without mentioning or analyzing the Due Process Clause—that “[t]he plain language of § 4241(d) provides that the four-month period of evaluative commitment begins on the date of hospitalization,” not on the date of the court's commitment order); Martikainen at 1–2 (similar); cf. Tucker, 2021 WL 6197065, at *5 n.6, *14 & n.22 (holding in a factually dissimilar context that “the proper inquiry” under IDRA “is the length of evaluation while hospitalized” rather than “the timeframe from the court's order to when the [psychiatric] report is ultimately filed;” mentioning “due process” solely in reference to an “involuntary medication hearing”).

57.   544 F.3d at 415–19.

58.   Id. (“[T]he totality of the circumstances—including Magassouba's refusal of treatment ․ demonstrate that his total nineteen months’ confinement from the time he was found incompetent to stand trial until the district court entered the challenged treatment order was not so unreasonable as to violate due process.”).

59.   Id. at 416 (emphasis added).

60.   Id. at 415–16 (emphasis added).

61.   Id. at 416.

62.   Contra id. at 418 (“The delay in Magassouba's attainment of competency is largely attributable to his own action, specifically, his invocation while still at Butner of his right to refuse treatment.”).

63.   See, e.g., Leusogi II, 2022 WL 16855426, at *3 (“BOP has chosen to designate a small number of facilities as ‘suitable facilities’ and has failed to outfit them with the requisite staff, resources, and beds to handle the needs of those defendants requiring competency restoration.”); Lara I, ––– F. Supp. 3d at ––––, 2023 WL 3168646, at *7 (“[T]he delay is attributable to the BOP's failure to maintain adequate facilities to keep up with the number of patients that require competency restoration․ [I]f the Government wants to continue to file charges against severely mentally ill individuals ․, then the Government needs to figure out how to allocate [sufficient] resources to competency restoration facilities.” (cleaned up)).

64.   See 544 F.3d at 417–18.

65.   See supra note 29 and accompanying text.

66.   See, e.g., Wazny, 2022 WL 17363048, at *5 (concluding that the defendant's “period of pre-hospitalization custody of six[ ] months” did not “clearly exceed[ ] what [could] be deemed a reasonable period of time,” but opining that a delay of eight months would “facially offend[ ] basic due process principles” and would be “presumptively unreasonable”); United States v. Ficklin, No. 3:22-CR-42, 2023 WL 417405, at *2 (S.D. Miss. Jan. 25, 2023) (“Ficklin has been in pre-hospitalization commitment for over 100 days. He has not been in commitment for eight months ․ [D]ismissal is not an appropriate remedy.”); United States v. Weisman, No. 6:19-cr-00421, 2023 WL 3816945, at *4 (D. Or. June 5, 2023) (finding “no due process violation” where “the delay in transporting [the d]efendant amounted to 54 days”); United States v. Bravo-Cuevas, No. CR-22-00076, 2022 WL 3042916, at *2 (D. Ariz. Aug. 2, 2022) (denying relief where defendant's pre-hospitalization “transportation delay ․ ha[d] not exceeded four months”); United States v. Lee, No. 1:21-CR-20034, 2022 WL 18275882, at *5 (S.D. Fla. Dec. 27, 2022), report and recommendation adopted by 2023 WL 168755 (S.D. Fla. Jan. 12, 2023) (holding that five-month pre-hospitalization delay was not “egregious or outrageous” enough to “rise[ ] to the level of a due process violation”); United States v. Jones, No. CR 19-27, 2020 WL 7127321, at *3 (D. Mont. Dec. 4, 2020) (“[T]here is no due process violation in Jones’ 122-day confinement while he awaited the start of his treatment at FMC Springfield.”).

67.   See 18 U.S.C. § 3142(e)(1) (“If ․ [a] judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of any other person and the community, such judicial officer shall order the detention of the [defendant] before trial.”).

68.   See, e.g., Lee, 2022 WL 18275882, at *4–5 (“One important consideration for courts determining whether a defendant's rights are violated is whether the defendant is already being detained for some reason other than their [sic] incompetency․ Defendant is already being held in pretrial detention, and, as such, this case is different from those in which the only basis for holding the defendant was incompetency.” (internal citations omitted)); Jones, 2020 WL 7127321, at *2–3 (“The heightened scrutiny for any period of incarceration based solely on incapacitation ․ is not triggered here because Jones was not detained because of his mental disease or defect. Jones was detained [because] he presented a danger to his community and posed a flight risk.”); cf. United States v. Hatter, No. 14-cr-1811, 2015 WL 1511015, at *2 (S.D. Cal. Mar. 19, 2015) (“Hatter originally objected on Due Process grounds to his continued detention in custody while the government waited for bed space to become available at Butner. On February 5, 2015, the Court found that Hatter posed a danger to the community and to an individual identified in the psychiatric evaluation report and ordered Hatter detained under 18 U.S.C. § 3142(e). Given Hatter's dangerousness, the Court finds that an overriding legitimate interest was served by Hatter's detention while he awaited restorative treatment.”); United States v. Smith, 764 F. Supp. 2d 541, 545 (W.D.N.Y. Feb. 9, 2011) (“If [the] defendant is determined to pose a danger to the community, that finding might affect my due process analysis concerning the duration of his [pre-hospitalization] confinement.”).

69.   Because the Court ultimately declines to follow Jones and its progeny, the Court need not consider whether the nine-month delay here qualifies as “brief.” Contra Jones, 2020 WL 7127321, at *3 (rejecting argument that defendant's “four-month delay awaiting transport” violated his due process rights (emphasis added)).

70.   See, e.g., id. at *2 (citing the cases listed in note 68 supra).

71.   Pretrial Detention Order, ECF No. 9, at 2.

72.   See generally id. at 1–3.

73.   See, e.g., Jones, 2020 WL 7127321, at *3 (“[T]here is no due process violation in Jones’ 122-day confinement while he awaited the start of his treatment at FMC Springfield. The heightened scrutiny for any period of incarceration based solely on incapacitation ․ is not triggered here because Jones was not detained because of his mental disease or defect. Jones was detained [because] determined he presented a danger to his community and posed a flight risk.”).

74.   See Hatter, 2015 WL 1511015, at *2; Jones, 2020 WL 7127321, at *2; Smith, 764 F. Supp. 2d at 545.

75.   406 U.S. at 733, 92 S.Ct. 1845 (emphasis added).

76.   See Jones, 2020 WL 7127321, at *2–3 (“The heightened scrutiny for any period of incarceration based solely on incapacitation ․ is not triggered here because ․ Jones was detained [because] he presented a danger to his community ․”); cf. Hatter, 2015 WL 1511015, at *2 (overruling defendant's “object[ion] on Due Process grounds to his continued detention in custody while the government waited for bed space to become available” because the defendant “posed a danger to the community and to an individual identified in the psychiatric evaluation report”).

77.   See 18 U.S.C. § 4246 (1970) (“Whenever the trial court shall determine ․ that an accused is or was mentally incompetent, the court may commit the accused to the custody of the Attorney General or his authorized representative, until the accused shall be mentally competent to stand trial or until the pending charges against him are disposed of according to law.” (emphasis added)).

78.   See 406 U.S. at 731–33, 92 S.Ct. 1845 (“In the federal criminal system, the constitutional issue posed here has not been encountered precisely because the federal statutes have been construed to require that a mentally incompetent defendant must also be found ‘dangerous’ before he can be committed indefinitely․ The federal statute ․ provides that a defendant found incompetent to stand trial may be committed ‘until the accused shall be mentally competent to stand trial or until the pending charges against him are disposed of according to law.’ ․ [F]ederal courts without exception have found improper any straightforward application of [that statute] to a defendant whose chance of attaining competency to stand trial is slim, thus effecting an indefinite commitment on the ground of incompetency alone. The holding in each of these cases was grounded in an expressed substantial doubt that [the federal commitment statute] could survive constitutional scrutiny if interpreted to authorize indefinite commitment. These decisions have imposed a ‘rule of reasonableness’ upon [the statute]. Without a finding of dangerousness, one committed thereunder can be held only for a ‘reasonable period of time’ necessary to determine whether there is a substantial chance of his attaining the capacity to stand trial in the foreseeable future.” (emphasis added) (internal citations omitted)).

79.   See id.

80.   See id. at 738, 92 S.Ct. 1845.

81.   Id. at 731, 92 S.Ct. 1845 (emphasis added); see also id. at 720, 92 S.Ct. 1845 (“Indiana cannot constitutionally commit the petitioner for an indefinite period simply on account of his incompetency to stand trial on the charges filed against him ․” (emphasis added)); id. at 738, 92 S.Ct. 1845 (“[A] person charged by a State with a criminal offense who is committed solely on account of incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.” (emphasis added)).

82.   544 F.3d at 415–19.

83.   Id. at 415 (emphasis added).

84.   See id. (quoting Jackson, 406 U.S. at 738, 92 S.Ct. 1845). As discussed, the Second Circuit instead rejected the defendant's due process challenge because most of the delay was “attributable to [the defendant's] own action, specifically his invocation ․ of his right to refuse treatment.” Id. at 418; see also supra note 58 and accompanying text. Again, that potential ground for rejecting Defendant's due process challenge is inapplicable here. See supra notes 62–63 and accompanying text.

85.   544 F.3d at 416 (emphasis added).

86.   Id.

87.   See id. at 415–16 (emphasis added).

88.   Again, the Court does not yet decide whether it also adopts Magassouba’s holding regarding when IDRA's four-month maximum hospitalization period starts. See supra notes 49 & 54 and accompanying text.

89.   At least one other district court has reached a similar conclusion, albeit on slightly different grounds. See Raja, 2023 WL 3497234, at *1, *5 (“The Government asks the Court to consider [when formulating its remedy for the Government's due process violation] ․ that [the defendant] has been held ․ under Section 3142 [because a U.S. Magistrate Judge previously “found by clear and convincing evidence that no condition or combination of conditions of release” would “reasonably assure the safety of any other person and the community”]․ The Court rejects [the Government's argument]․ [Defendant's pre-hospitalization detention] hold is separate and distinct from any hold entered under Section 3142. That section allows the court to detain defendants ‘pending trial,’ but, due to Mr. Raja's incompetency determination, no trial is pending at this time and in fact cannot constitutionally take place. The only hold relevant to the time since this Court's commitment order is the hold issued in that order.” (internal citations omitted)).The Ninth Circuit likewise appears to have implicitly rejected the premise that the Government has carte blanche to delay an incompetent defendant's hospitalization for an extended period if the district court first declares the defendant a danger to the community. Compare Donnelly, 41 F.4th at 1103 (“The district court ordered [Donnelly] detained without bail under 18 U.S.C. § 3142 as both a danger to the community and a flight risk.”), with id. at 1106 (deeming the defendant's extended pre-hospitalization detention unlawful notwithstanding the district court's pretrial detention order under § 3142). The Court need not opine whether the District of Montana's decision in Jones and the Southern District of California's decision in Hatter—which arguably stand for the contrary proposition—survive the Ninth Circuit's subsequent decision in Donnelly. See supra notes 68 & 70 and accompanying text.

90.   At least one court has also questioned that premise when ruling on a preliminary injunction motion in a civil rights case. See Ind. Prot. & Advoc. Servs. Comm'n v. Ind. Fam. & Soc. Servs. Admin., 630 F. Supp. 3d 1022, 1031 (S.D. Ind. 2022) (“The Court is not persuaded that Jackson controls this case. Jackson decided, in effect, that competency restoration services cannot go on indefinitely. No one here argues they do. This case concerns the waiting period after a defendant has been found incompetent but before competency restoration services begin.”).

91.   No. 3:16-CR-102, 2017 WL 5894223, at *1 (S.D. Miss. Nov. 29, 2017).

92.   Id.

93.   Id. at *1–2 (citing Jackson, 406 U.S. at 731, 92 S.Ct. 1845).

94.   Id. at *2.

95.   Id.

96.   Id.

97.   Id. (emphasis added).

98.   Id. (“[T]his is not an ‘indefinite commitment.’ The Court's Order directed commitment ‘for a reasonable period of time, not to exceed four months.’ Once Easterling is hospitalized, the expectation is that a determination [regarding his likelihood of regaining competency] will be made within that four-month timeframe.” (internal citations omitted)).

99.   See supra note 25 and accompanying text.

100.   See Wazny, 2022 WL 17363048, at *6 (“The Court recognizes that Defendant Wazny's pre-hospitalization does not appear to be ‘indefinite.’ The BOP has informed the parties and this Court that Wazny will be admitted to FMC Butner in approximately February of 2023.”).

101.   406 U.S. at 731, 92 S.Ct. 1845 (emphasis added).

102.   Id. at 738, 92 S.Ct. 1845 (emphasis added).

103.   See Wazny, 2022 WL 17363048, at *6 (“The Court recognizes that Defendant Wazny's pre-hospitalization does not appear to be ‘indefinite.’ ․ However, at issue is whether the resulting eight-to-nine month waiting period bears a reasonable relation to its purpose.”).

104.   See supra notes 24–29 and accompanying text.

105.   See, e.g., United States v. Berard, ––– F. Supp. 3d ––––, 2023 WL 3178793, at *7–8 (D.N.H. May 1, 2023) (canvassing the relevant authorities). Contra Mot. at 3.

106.   See, e.g., Berard, ––– F.Supp.3d at ––––, 2023 WL 3178793, at *8 (“Most courts to address the government's now-common failures in timely placing committed defendants in suitable medical facilities have found that the appropriate remedy is a directive that such defendants be placed in a facility immediately or within a certain, short period of time.”); Vanarsdale, 2023 WL 5094011, at *3 (agreeing that “the remedy routinely issued by courts” for similar due process violations “is an order requiring the government to admit the defendant to a suitable facility within a specified time period”).See also, e.g., Lara I, ––– F.Supp.3d at ––––, 2023 WL 3168646, at *1 (“[T]he Court ․ orders the Attorney General to admit Defendant to FMC Butner or a similar facility within seven days of the entry of this Order.”); Leusogi I, 2022 WL 11154688, at *3 (“[T]he Court will order the Attorney General to place Defendant in a suitable facility within seven days of this Order. If the Attorney General fails to comply with that Order, dismissal may become appropriate.” (cleaned up)); Raja, 2023 WL 3497234, at *5 (ordering Government “to transport [the defendant] to a suitable facility within thirty (30) days”); Wazny, 2022 WL 17363048, at *7 (ordering “the Government to hospitalize [the defendant] in a suitable facility” within “30 days”).

107.   See, e.g., Berard, ––– F.Supp.3d at ––––, 2023 WL 3178793, at *8 (“[O]nly after the government has failed to comply with such an order do courts entertain dismissal of the indictment.”); Lara II, 2023 WL 3316274, at *2 (“[T]he United States has been afforded time to correct the existing constitutional violation, and the United States has been unable to do so. The only solution that remains is dismissal.”); Leusogi II, 2022 WL 16855426, at *3 (dismissing indictment after Attorney General “failed to hospitalize [the d]efendant in a suitable facility” “[d]espite two orders” to do so).

108.   Again, the fact that the Court doesn't dismiss the Indictment in this Memorandum Opinion and Order doesn't necessarily mean that the Court won't dismiss it on some other ground (such as the Speedy Trial Act) once it finishes researching and analyzing the remaining legal issues. And the Court may well dismiss the Indictment on due process grounds if the Government doesn't timely admit Defendant to a suitable psychiatric facility by the deadline the Court sets in this Memorandum Opinion and Order.

109.   Compare Castrellon I, 2023 WL 2330688, at *4 (“[T]he Government has represented that Mr. Castrellon is scheduled to arrive at FMC Butner in early April 2023. At that time, Mr. Castrellon will have spent eight months awaiting designation to a medical facility ․ Rather than enjoin the Government to effectuate the immediate hospitalization of Mr. Castrellon—a process that may be unduly disruptive or which may result in the Attorney General designating Mr. Castrellon to a less-optimal facility—the Court observes that, given the current date, it [is] appropriate to simply hold the Government to its representation: that Mr. Castrellon shall be hospitalized no later than early April 2023. If Mr. Castrellon is not assigned to a suitable facility and beginning treatment by April 10, 2023, this Court ․ would then strongly entertain dismissing the indictment at that time.” (cleaned up)), with Castrellon II at 2–3, 8 (“The Government noted that Defendant was scheduled to arrive at FMC Butner ‘in early April 2023.’ ․ On April 10, 2023, [however,] Defendant filed a Renewed Motion to Dismiss the Indictment, wherein Defendant informed the Court that he had not been transferred to FMC Butner․ The Government finally responded on April 25, 2023, and conceded that ‘[t]he defendant did not arrive at FMC Butner by April 10, 2023,’ and instead arrived at FMC Butner ․ on April 18, 2023․ Accordingly, Defendant's Renewed Motion to Dismiss the Indictment is GRANTED.” (internal citations omitted)).

110.   See, e.g., Hatter, 2015 WL 1511015, at *2 (“Hatter was transferred to Butner ․ and is currently receiving restorative treatment. As such, the Court finds that any due process challenge based upon any delay while Hatter awaited restorative treatment is moot.”); Berard, ––– F.Supp.3d at ––––, 2023 WL 3178793, at *8 (“Berard has already been hospitalized. Therefore, the government has provided the remedy—hospitalization—that courts most commonly order when the government has failed to timely transport a committed defendant to a hospital. And neither this court nor Berard has been able to identify any case where a court has dismissed an indictment for lack of a timely transport after the government has admitted the defendant to a suitable facility.”); Vanarsdale, 2023 WL 5094011, at *3 (“[T]he remedy routinely issued by courts is an order requiring the government to admit the defendant to a suitable facility within a specified time period. Such a remedy is not necessary here as [the d]efendant has already been transferred to the facility.”).

DAVID C. GUADERRAMA, SENIOR UNITED STATES DISTRICT JUDGE