Application of the Sixth Amendment and COVID-19

The Law

The Sixth Amendment to the U.S. Constitution reads, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense” (1).The Speedy Trial Act of 1974 and state laws provide guidance as to the number of days to bring a defendant to trial before this right is violated. A prosecutor may work around the “speedy trial clock” if they can show good cause for a delay, or if a defendant agrees to waive the right. One reason for the right to a speedy trial is to prevent a defendant from being held in custody only to find out that the defendant was innocent. An innocent citizen who is incarcerated in violation of the Sixth Amendment right to a speedy trial is a violation of due process rights (2).

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The Facts

Ben was indicted on 24 state counts of possession of fentanyl, with intent to distribute near an elementary school, and federal racketeering charges in September 2019. While Ben sat in jail, his attorney was able to delay his jury trial a few times so he could gather witnesses for Ben’s defense. In March 2020, Ben’s attorney submitted a motion to dismiss the charges for a violation of Ben’s Sixth Amendment right to a speedy trial. The hearing was set for March 28. On March 15, the Governor of the state ordered all courts to close and suspended jury trials due to public safety concerns over COVID-19. Ben did not get his hearing and remained in jail.

Instructions

  • Research the Federal Speedy Trial Act and its requirements.
  • Research the law in New York State pertaining to the number of days a defendant may be held in jail, consistent with the requirements of the Sixth Amendment, for a felony and misdemeanor charge.
  • Read United States v. Olsen [PDF].

Write a one-page, double-spaced explanation using Times New Roman font (size 12), with 1-inch margins on all sides of whether Ben’s Sixth Amendment right to a speedy trial was violated, based on your understanding of the law and the 9th Circuit Appellate Court case, United States v. Olsen.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.

JEFFREY OLSEN,

Defendant-Appellee.

No. 20-50329

D.C. Nos.
8:17-cr-00076-CJC-1
8:17-cr-00076-CJC

OPINION

Appeal from the United States District Court

for the Central District of California
Cormac J. Carney, District Judge, Presiding

Argued and Submitted March 18, 2021

San Francisco, California

Filed April 23, 2021

Before: Mary H. Murguia and Morgan Christen, Circuit
Judges, and Barbara M. G. Lynn,* District Judge.

Per Curiam

  • Opinion
  • * The Honorable Barbara M. G. Lynn, Chief United States District

    Judge for the Northern District of Texas, sitting by designation.

    2 UNITED STATES V. OLSEN

    SUMMARY**

    Criminal Law

    The panel reversed the district court’s judgment
    dismissing with prejudice an indictment charging Jeffrey
    Olsen on 34 counts related to the unlawful distribution of
    opioids, and remanded with instructions to reinstate the
    indictment, grant an appropriate “ends of justice”
    continuance under 18 U.S.C. § 3161(h)(7)(A), and set the
    case for trial.

    Olsen was indicted in July 2017. He has since remained
    on pretrial release and has obtained eight continuances of his
    trial date, most recently scheduled for October 13, 2020.
    After the Central District of California suspended jury trials
    due to the COVID-19 pandemic in March 2020, Olsen
    invoked, for the first time, his right to a speedy trial. Because
    jury trials were suspended, the government requested a
    continuance of Olsen’s trial under § 3161(h)(7)(A)—the
    Speedy Trial Act’s “ends of justice” provision. The district
    court denied the request and, ultimately, dismissed the
    charges against Olsen with prejudice, concluding that
    continuances under the ends of justice provision are
    appropriate only if holding a criminal jury trial would be
    impossible.

    The panel wrote that nothing in the Speedy Trial Act
    limits district courts to granting ends of justice continuances
    only when holding jury trials is impossible, and that the
    district court clearly erred by reading the word “impossible”

    ** This summary constitutes no part of the opinion of the court. It

    has been prepared by court staff for the convenience of the reader.

    UNITED STATES V. OLSEN 3

    from 18 U.S.C. § 3161(h)(7)(B)(i) in isolation, which is
    enough to reverse.

    The panel wrote that by solely focusing on the word
    “impossible,” the district court also overlooked the rest of
    § 3161(h)(7)(B)(i), which requires courts to ask whether the
    district court’s failure to apply an ends of justice continuance
    would result in a miscarriage of justice. The panel
    concluded that the district court’s failure to grant the
    government’s motion for a continuance and subsequent
    dismissal of the indictment, under the unique facts of Olsen’s
    case and the Central District’s suspension of jury trials,
    resulted in a miscarriage of justice. The panel noted that
    Olsen, who was granted bond, had obtained eight trial
    continuances, including one over the government’s
    objection, effectively delaying his trial well over three years;
    that after the Central District suspended jury trials, Olsen
    insisted on sticking to his scheduled trial date; and that by
    that time, the prosecution had been ready for trial for months
    and was wholly blameless for the Central District’s
    suspension of jury trials.

    The panel wrote that the district court also failed to
    consider other, non-statutory factors. The panel found
    relevant in the context of the COVID-19 pandemic the
    following non-exhaustive factors: (1) whether a defendant
    is detained pending trial; (2) how long a defendant has been
    detained; (3) whether a defendant has invoked speedy trial
    rights since the case’s inception; (4) whether a defendant, if
    detained, belongs to a population that is particularly
    susceptible to complications if infected with the virus; (5)
    the seriousness of the charges a defendant faces, and in
    particular whether the defendant is accused of violent
    crimes; (6) whether there is a reason to suspect recidivism if
    the charges against the defendant are dismissed; and (7)

    4 UNITED STATES V. OLSEN

    whether the district court has the ability to safely conduct a
    trial.

    Though not necessary to its disposition of this case, the
    panel found it important to highlight the district court’s
    additional error in dismissing the indictment with prejudice.
    The panel wrote that the district court, which primarily based
    its decision on the perceived need to deter the Central
    District from continuing its jury trial suspension, committed
    legal error in failing to consider key factors relevant to
    Olsen’s case: the absence of prosecutorial culpability and
    the multiple continuances requested by Olsen. The panel
    wrote that the district court also committed legal error in
    evaluating the impact of reprosecution on the administration
    of the Speedy Trial Act and on the administration of justice.

    COUNSEL

    Charles E. Fowler Jr. (argued) and Bram M. Alden, Assistant
    United States Attorneys; Brandon D. Fox, Chief, Criminal
    Section; Tracy L. Wilkison, Acting United States Attorney;
    United States Attorney’s Office, Los Angeles, California;
    for Plaintiff-Appellant.

    James H. Locklin (argued), Deputy Federal Public Defender;
    Cuauhtemoc Ortega, Federal Public Defender; Office of the
    Federal Public Defender, Los Angeles, California; for
    Defendant-Appellee.

    UNITED STATES V. OLSEN 5

    OPINION

    PER CURIAM:

    The COVID-19 pandemic has presented courts with
    unprecedented challenges. Among these challenges is
    determining when and how to conduct jury trials without
    endangering public health and safety and without
    undermining the constitutional right to a jury trial. The
    United States appeals from the district court’s dismissal with
    prejudice of an indictment against Defendant Jeffrey Olsen.
    Olsen was indicted in July 2017 on thirty-four counts related
    to the unlawful distribution of opioids. He has since
    remained on pretrial release and has obtained eight
    continuances of his trial date, most recently scheduled for
    October 13, 2020. After the Central District of California
    suspended jury trials due to the COVID-19 pandemic in
    March 2020, Olsen invoked, for the first time, his right to a
    speedy trial. Because jury trials were suspended, the
    government requested a continuance of Olsen’s trial under
    18 U.S.C. § 3161(h)(7)(A)—the Speedy Trial Act’s “ends of
    justice” provision. The district court denied the request and,
    ultimately, dismissed the charges against Olsen with
    prejudice, concluding that continuances under the ends of
    justice provision are appropriate only if holding a criminal
    jury trial would be impossible. Because the district court
    erred in its reading of 18 U.S.C. § 3161(h)(7)(A), we reverse
    with instructions to reinstate Olsen’s indictment, grant an
    appropriate ends of justice continuance, and set this case for
    trial.

    6 UNITED STATES V. OLSEN

    I.

    A.

    We have jurisdiction under 18 U.S.C. § 3731. We
    review de novo a district court’s decision to dismiss on
    Speedy Trial Act grounds and its findings of fact for clear
    error. United States v. Henry, 984 F.3d 1343, 1349–50 (9th
    Cir. 2021) (citing United States v. King, 483 F.3d 969, 972
    n.3 (9th Cir. 2007)). A district court’s ends of justice
    determination will be reversed only if it is clearly erroneous.
    United States v. Murillo, 288 F.3d 1126, 1133 (9th Cir.
    2002).

    B.

    The Sixth Amendment guarantees all criminal
    defendants “the right to a speedy and public trial.” U.S.
    Const. amend. VI. Despite this guarantee, however, the
    Sixth Amendment does not prescribe any specified length of
    time within which a criminal trial must commence. See id.
    To give effect to this Sixth Amendment right, Congress
    enacted the Speedy Trial Act, which sets specified time
    limits after arraignment or indictment within which criminal
    trials must commence. Pub. L. No. 93-619, 88 Stat. 2076
    (1975); see Furlow v. United States, 644 F.2d 764, 768–69
    (9th Cir. 1981) (per curiam) (describing the Speedy Trial Act
    as the Sixth Amendment’s “implementation”).

    As relevant here, the Speedy Trial Act requires that a
    criminal trial begin within seventy days from the date on
    which the indictment was filed, or the date on which the
    defendant makes an initial appearance, whichever occurs
    later. 18 U.S.C. § 3161(c)(1). Recognizing the need for
    flexibility depending on the circumstances of each case,
    however, the Speedy Trial Act “includes a long and detailed

    UNITED STATES V. OLSEN 7

    list of periods of delay that are excluded in computing the
    time within which trial must start.” Zedner v. United States,
    547 U.S. 489, 497 (2006); see 18 U.S.C. § 3161(h). A court
    may exclude periods of delay resulting from competency
    examinations, interlocutory appeals, pretrial motions, the
    unavailability of essential witnesses, and delays to which the
    defendant agrees. 18 U.S.C. § 3161(h). The Speedy Trial
    Act also includes an ends of justice provision, allowing for
    the exclusion of time where a district court finds “that the
    ends of justice served by taking such action outweigh the
    best interest of the public and the defendant in a speedy
    trial.” Id. § 3161(h)(7)(A). In determining whether the ends
    of justice outweigh the best interest of the public and the
    defendant in a speedy trial, the district court must evaluate,
    “among others,” several enumerated factors. Id.
    § 3161(h)(7)(B)(i)–(iv). Most relevant to our analysis is the
    first enumerated factor: “[w]hether the failure to grant such
    a continuance in the proceeding would be likely to make a
    continuation of such proceeding impossible, or result in a
    miscarriage of justice.” Id. § 3161(h)(7)(B)(i).

    II.

    A.

    The global COVID-19 pandemic has proven to be
    extraordinarily serious and deadly.1 In response, many state
    and local governments entered declarations curtailing
    operations of businesses and governmental entities that
    interact with the public. Beginning on March 13, 2020, the

    1 As of April 2021, there have been over 141 million confirmed

    COVID-19 cases and over 3 million COVID-19 related deaths globally.
    Over 31 million of those cases are from the United States, with well over
    half a million deaths. And as of April 2021, California alone has
    confirmed over 3.6 million cases, with nearly 60,000 deaths.

    8 UNITED STATES V. OLSEN

    Central District of California—in light of the exigent
    circumstances brought on by the pandemic and the
    emergencies declared by federal and state officials—issued
    a series of emergency orders.2 Vital to this appeal is the
    Central District’s suspension of criminal jury trials, which
    began on March 13, 2020. See C.D. Cal. General Order 20-
    02 (March 17, 2020); see also C.D. Cal. General Order 20-
    05 (April 13, 2020); C.D. Cal. Amended General Order 20-
    08 (May 28, 2020); C.D. Cal. General Order 20-09 (August
    6, 2020); C.D. Cal. General Order 21-03 (March 19, 2021).3

    Each order was entered upon unanimous or majority
    votes of the district judges of the Central District with the
    stated purpose “to protect public health” and “to reduce the
    size of public gatherings and reduce unnecessary travel,”
    consistent with the recommendations of public health
    authorities. C.D. Cal. General Order 20-02 at 1; C.D. Cal.
    General Order 20-05 at 1; C.D. Cal. Amended General Order
    20-08 at 1; C.D. Cal. General Order 20-09 at 1. Most
    recently, on April 15, 2021, the Central District issued a
    general order explaining that jury trials will commence in the

    2 Among these was the Central District of California’s declaration

    of a judicial emergency pursuant to 18 U.S.C. § 3174, which this
    Circuit’s Judicial Council subsequently approved. See In re Approval of
    Jud. Emergency Declared in the Cent. Dist. of Cal., 955 F.3d 1140, 1141
    (9th Cir. 2020) (“Judicial Emergency”). The emergency period runs
    until April 13, 2021 and extends the Speedy Trial Act’s 70-day time limit
    for commencing trial to 180 days for defendants indicted between March
    13, 2020 and April 13, 2021 and “detained solely because they are
    awaiting trial.” Id. at 1141–42; 18 U.S.C. § 3174(b). Because Olsen was
    indicted before the suspension, the 180-day period does not apply, and
    he is subject to the ordinary Speedy Trial Act time limit.

    3 The General Orders are accessible at
    https://www.cacd.uscourts.gov/news/coronavirus-covid-19-guidance.

    UNITED STATES V. OLSEN 9

    Southern Division, where the presiding judge in this action
    sits, on May 10, 2021. C.D. Cal. General Order 21-07.4

    B.

    1.

    Jeffrey Olsen, a California-licensed physician, is
    accused of illegally prescribing opioids. Following an
    investigation that began in January 2011, Olsen was indicted
    in July 2017 in the Central District of California on thirty-
    four counts related to illegal distribution of oxycodone,
    amphetamine salts, alprazolam, and hydrocodone, in
    violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), (b)(1)(E), and
    (b)(2), and furnishing false and fraudulent material
    information to the U.S. Drug Enforcement Administration in
    violation of 21 U.S.C. § 843(a)(4)(A). According to the
    government, Olsen was aware that at least two of his patients
    had died of prescription drug overdoses, while he continued
    prescribing dangerous combinations and unnecessary
    amounts of opioids to his patients.

    Olsen made his initial appearance and was arraigned on
    July 11, 2017. Because the Speedy Trial Act required that
    Olsen’s trial commence on or before September 19, 2017,
    the district court set trial for September 5, 2017. Olsen
    pleaded not guilty, and a magistrate judge set a $20,000
    unsecured appearance bond; Olsen posted the bond and has
    since remained out of custody.

    4 The Central District of California includes the Western, Eastern

    and Southern divisions. At all relevant times, Olsen’s case was based
    out of the Southern Division, located in Santa Ana, California.

    10 UNITED STATES V. OLSEN

    2.

    Since Olsen’s indictment and release on bond in 2017,
    there have been eight continuances of his trial date, which
    has postponed trial for over three years. The first five
    continuances were reached by stipulation with the
    government. Before the fifth stipulation, Olsen fired his
    retained counsel who had represented him since his initial
    appearance, and the district court appointed the Federal
    Public Defender as replacement counsel. These five
    stipulations continued Olsen’s trial from September 5, 2017
    to November 5, 2019. On August 20, 2019, Olsen sought a
    sixth continuance, which the district court granted over the
    government’s objection, and continued Olsen’s trial to May
    5, 2020. After the court granted this continuance, the
    COVID-19 pandemic hit the United States in March 2020.
    Thereafter Olsen obtained two more continuances via
    stipulations, which collectively continued his trial from May
    5, 2020 to October 13, 2020.

    On August 20, 2020, the district court held a status
    conference on Olsen’s case. Olsen, for the first time,
    invoked his right to a speedy trial and expressed a desire to
    proceed with a jury trial on October 13, 2020. The
    government argued that an ends of justice continuance was
    appropriate due to the COVID-19 pandemic, the Central
    District’s order suspending jury trials, and the absence of
    protocols to ensure the safety of jurors, witnesses, court staff,
    litigants, attorneys, defendants, and the public. The
    government also highlighted that it had objected to Olsen’s
    request for a continuance a year earlier and had sought to
    proceed with trial in November 2019. In addition, the
    government noted, Olsen was out of detention, therefore
    diminishing any possible prejudice resulting from delay.

    UNITED STATES V. OLSEN 11

    On August 28, 2020, the government formally moved to
    continue the trial from October 13, 2020 to December 1,
    2020. The government argued that, given the Central
    District’s suspension of jury trials and the lack of district-
    approved protocols to safely conduct a jury trial, the ends of
    justice served by a continuance outweighed the best interest
    of the public and Olsen in having a speedy trial. Olsen
    opposed the motion, and the district court denied it on
    September 2, 2020.

    In denying the government’s motion, the district judge
    made clear that, in his view, nothing short of trial
    impossibility could permit additional delay of Olsen’s trial:
    “Continuances under the ‘ends of justice’ exception in the
    Speedy Trial Act are appropriate if without a continuance,
    holding the trial would be impossible” and “actual
    impossibility is key for application of [the ends of justice]
    exception.” The court concluded that the Constitution
    “requires that a trial only be continued over a defendant’s
    objection if holding the trial is impossible” and that “[i]f it is
    possible for the court to conduct a jury trial, the court is
    constitutionally obligated to do so. There are no ifs or buts
    about it.” Because, the district court reasoned, “it is simply
    not a physical or logistical impossibility to conduct a jury
    trial,” a continuance was forbidden. The district court
    therefore requested the Chief Judge of the Central District to
    summon jurors for Olsen’s trial. The Chief Judge promptly
    rejected this request and explained that the majority of the
    Central District judges had approved a general order to
    suspend jury trials as “necessary to protect the health and
    safety of prospective jurors, defendants, attorneys, and court
    personnel due to the [COVID-19] pandemic.”

    12 UNITED STATES V. OLSEN

    3.

    On September 15, 2020, Olsen moved to dismiss his
    indictment with prejudice for violations of the Speedy Trial
    Act and Sixth Amendment. On October 14, 2020, the
    district court granted the motion. The district court’s
    dismissal order was premised, again, on the theory that the
    court could not grant a continuance unless “holding
    [Olsen’s] trial would be impossible.” The district court
    stated:

    Given the constitutional importance of a jury
    trial to our democracy, a court cannot deny an
    accused his right to a jury trial unless
    conducting one would be impossible. This is
    true whether the United States is suffering
    through a national disaster, a terrorist attack,
    civil unrest, or the coronavirus pandemic that
    the country and the world are currently
    facing. Nowhere in the Constitution is there
    an exception for times of emergency or crisis.
    There are no ifs or buts about it.

    In other words, nothing short of “actual impossibility” would
    do. Although, the court reasoned, the pandemic is “serious”
    and “[o]f course” posed a “public health risk,” “it is simply
    not a physical or logistical impossibility to conduct a jury
    trial.”

    The district court observed that grand juries had
    convened in the federal courthouse and that the Orange
    County Superior Court, which is across the street from the
    Santa Ana Courthouse, had resumed jury trials with
    precautionary measures. “Clearly,” the district court
    reasoned, “conducting a jury trial during this coronavirus
    pandemic is possible” and the Central District had therefore

    UNITED STATES V. OLSEN 13

    “[s]adly” denied Olsen his speedy-trial rights by suspending
    jury trials because they were “unsafe,” but not “impossible.”
    The court noted that “it is not a question of if the Court
    should have held Mr. Olsen’s criminal jury trial during this
    stage of the coronavirus pandemic, but a question of how the
    Court should have held it.” The court did not separately
    address Olsen’s Sixth Amendment claim, finding that the
    analysis of that claim would parallel the Speedy Trial Act
    analysis.

    As for the remedy, the district court dismissed Olsen’s
    indictment with prejudice, pointing to the Central District’s
    suspension of trials and refusal to summon jurors for Olsen’s
    trial. The district court focused on the circumstances leading
    to dismissal and stated that the Chief Judge decided to
    suspend jury trials “knowingly and willfully” based on “the
    risk that people might get sick from the coronavirus,” but
    “with little or no regard” for Olsen’s speedy-trial rights. The
    court explained that “dismissing with prejudice is the only
    sanction with enough teeth to create any hope of deterring
    additional delay in the resumption of jury trials and avoiding
    further dismissals of indictments,” that dismissal without
    prejudice would let the government reindict “and proceed as
    if no constitutional violation ever occurred,” and that this
    “meaningless result” would have “no adverse
    consequences” for the Central District.

    Because the seventy-day Speedy Trial Act clock had not
    yet fully run, and no Speedy Trial Act violation had yet
    occurred, the court announced that the dismissal would “not
    take effect until October 28, 2020,” when the Speedy Trial
    Act clock would expire.5 On that date, the district court

    5 The parties do not dispute that the eight continuances in this case

    postponed Olsen’s trial from September 5, 2017 to October 13, 2020.

    14 UNITED STATES V. OLSEN

    entered a short order dismissing the indictment with
    prejudice and exonerating Olsen’s bond.

    III.

    A.

    We are asked to provide guidance on the application of
    the Speedy Trial Act’s ends of justice provision, 18 U.S.

    C.

    § 3161(h)(7)(A), in the context of the challenges presented
    by the COVID-19 pandemic. Olsen urges us to adopt the
    district court’s reading of § 3161(h)(7)(A)—that
    “[c]ontinuances under the ‘ends of justice’ exception in the
    Speedy Trial Act are appropriate if without a continuance,
    holding the trial would be impossible.” We decline to do so.
    At best, this is a strained reading of the Speedy Trial Act,
    and one without support from the text of the statute or our
    precedent.

    In concluding that literal impossibility is the relevant
    standard for an ends of justice continuance, the district court
    evaluated only part of the first ends of justice factor:
    “[w]hether the failure to grant such a continuance in the
    proceeding would be likely to make a continuation of such
    proceeding impossible . . . .” 18 U.S.C. § 3161(h)(7)(B)(i)
    (emphasis added). In support of this interpretation, Olsen
    points to two of our precedents evaluating the Speedy Trial
    Act’s ends of justice provision. In Furlow v. United States,
    we noted that Mt. St. Helens had erupted two days before the
    defendant’s trial, which “interrupted transportation,

    The district court’s orders excluded this time from the calculation of the
    date by which Olsen’s trial was required to commence. Based on these
    exclusions, the seventy-day Speedy Trial Act period ran from July 11,
    2017 to September 4, 2017 (fifty-five days) and from October 13, 2020
    to October 29, 2020 (fifteen days).

    UNITED STATES V. OLSEN 15

    communication, etc. (affecting the abilities of jurors,
    witnesses, counsel, officials to attend the trial).” 644 F.2d at
    767–68. Because of the logistical problems caused by the
    eruption, the district court continued the trial for two weeks
    past the prior Speedy Trial Act deadline under the ends of
    justice continuance provision. Id. Recognizing the
    “appreciable difficulty expected with an incident/accident of
    earth-shaking effect,” we held that this “relatively brief”
    delay did not violate the Speedy Trial Act. Id. at 769.

    Likewise, we found no Speedy Trial Act violation in
    United States v. Paschall, where the district court granted an
    eight-day ends of justice continuance of the Speedy Trial
    Act’s charging deadline because the grand jury was unable
    to form a quorum due to a major snowstorm. 988 F.2d 972,
    973–75 (9th Cir. 1993).6 Specifically, we concluded that an
    ends of justice continuance was justified because the
    “interest of justice outweigh[ed] the public’s and
    defendant’s interest in a speedy trial” and “the inclement
    weather made the proceedings impossible.” Id. at 975.

    Contrary to Olsen’s argument, nothing in Furlow or
    Paschall establishes a rule that an ends of justice
    continuance requires literal impossibility. In those cases, we
    simply affirmed ends of justice continuances because the
    eruption of a volcano and a major snowstorm temporarily
    impeded court operations. In other words, where it was
    temporarily impossible to conduct court proceedings for
    relatively brief periods, we found no Speedy Trial Act

    6 Paschall addressed the time between arrest or service of summons

    and an indictment, which cannot exceed thirty days. See 18 U.S.C.
    § 3161(b). Olsen’s case addresses the time between indictment or
    arraignment and trial, which cannot exceed seventy days. See id.
    § 3161(c).

    16 UNITED STATES V. OLSEN

    violation: but these cases do not stand for the proposition that
    a finding of impossibility is required in order to exclude time
    from the 70-day Speedy Trial Act clock. To be sure, the
    courts faced “appreciable difficulty” in proceeding to trial in
    Furlow, 644 F.2d at 769, and the inclement weather made
    grand jury proceedings temporarily “impossible” in
    Paschall, 988 F.2d at 975. But we never sanctioned the
    highly unusual result the district court reached here—that
    because the district court could physically hold a trial, it was
    required to deny the government’s ends of justice
    continuance and dismiss Olsen’s indictment with prejudice.7

    A proper reading of 18 U.S.C. § 3161(h)(7)(B)(i)
    compels the opposite result. This provision directs the
    district court to consider “[w]hether the failure to grant” a
    continuance would make continuing the proceedings
    impossible. 18 U.S.C. § 3161(h)(7)(B)(i) (emphasis added).
    Because not granting the government’s continuance meant
    that the Speedy Trial Act clock would necessarily expire
    before Olsen could be brought to trial, it follows that the
    district court’s “failure to grant” an ends of justice

    7 Olsen’s reliance on out-of-circuit caselaw fares no better. See

    United States v. Hale, 685 F.3d 522, 533–36 (5th Cir. 2012) (upholding
    an ends of justice continuance because a key witness was unavailable
    due to family emergency); United States v. Richman, 600 F.2d 286, 293–
    94 (1st Cir. 1979) (upholding an ends of justice continuance due to a
    blizzard); United States v. Stallings, 701 Fed. App’x. 164, 170–71 (3d
    Cir. 2017) (upholding an ends of justice continuance based in part on
    prosecutor’s family emergency and scheduling conflicts); United States
    v. Scott, 245 Fed. App’x. 391, 393–94 (5th Cir. 2007) (upholding an ends
    of justice continuance based in part on Hurricane Katrina); United States
    v. Correa, 182 F. Supp. 2d 326, 327–29 (S.D.N.Y. 2001) (upholding an
    ends of justice continuance due to the September 11, 2001 terrorist
    attacks). There is nothing in any of these cases to support the
    unwarranted reading of trial impossibility into the ends of justice
    provision that the district court adopted and Olsen advocates here.

    UNITED STATES V. OLSEN 17

    continuance in this case did make “a continuation of
    [Olsen’s] proceeding impossible.” Id. The district court
    instead considered only whether it was physically
    impossible to hold a trial. Nothing in the Speedy Trial Act
    limits district courts to granting ends of justice continuances
    only when holding jury trials is impossible. See id. This is
    an unnecessarily inflexible interpretation of a provision
    meant to provide necessary flexibility to district courts to
    manage their criminal cases. See Bloate v. United States,
    559 U.S. 196, 214 (2010) (citing Zedner, 547 U.S. at 498);
    see also S. Rep. No. 93–1021, 93d Cong., 2d Sess. 39 (1974)
    (noting that the ends of justice provision is “the heart of the
    speedy trial scheme” and provides for “necessary
    flexibility.”).

    In sum, the district court committed clear error by
    reading the word “impossible” from 18 U.S.C.
    § 3161(h)(7)(B)(i) in isolation. This is enough for us to
    reverse. See Murillo, 288 F.3d at 1133.8

    B.

    By solely focusing on the word “impossible” in
    18 U.S.C. § 3161(h)(7)(B)(i), the district court also
    overlooked the rest of the provision, which requires courts
    to ask whether the district court’s failure to apply an ends of
    justice continuance “would . . . result in a miscarriage of
    justice.” We find the miscarriage-of-justice provision
    particularly salient in Olsen’s case.

    8 Because the basis for the district court’s dismissal order was

    statutory only, we need not separately address Olsen’s Sixth Amendment
    claim.

    18 UNITED STATES V. OLSEN

    Olsen was indicted in July 2017 on thirty-four counts
    related to his prescribing dangerous combinations and
    unnecessary amounts of highly regulated pain medications,
    and was granted pretrial bond. He then obtained eight trial
    continuances, including one over the government’s
    objection, effectively delaying his trial for well over three
    years. After the Central District suspended jury trials, Olsen
    insisted on sticking to his scheduled trial date. By that time,
    the prosecution had been ready for trial for months and was
    wholly blameless for the Central District’s suspension of
    jury trials.

    The district court’s failure to even mention these
    important facts in its dismissal order—especially the years
    of continuances while Olsen was on pre-trial release and the
    absence of any government culpability or minimal prejudice
    to Olsen—is troubling. Olsen’s argument, that the district
    court’s finding that a trial was not impossible “implicitly”
    includes a finding that there would be no miscarriage of
    justice, is simply not convincing. We find no difficulty in
    concluding that the district court’s failure to grant the
    government’s motion and subsequent dismissal of Olsen’s
    indictment, under the unique facts of Olsen’s case and the
    Central District’s suspension of jury trials, resulted in a
    miscarriage of justice. 18 U.S.C. § 3161(h)(7)(B)(i).

    C.

    What is more, the district court failed to consider other,
    non-statutory factors. Section 3161(h)(7)(B) instructs
    district courts to consider a list of enumerated factors,
    “among others,” in deciding whether to grant an ends of
    justice continuance. Although district courts have broad
    discretion to consider any factors based upon the specific
    facts of each case, we have reversed rulings where district
    courts have entirely failed to address relevant non-statutory

    UNITED STATES V. OLSEN 19

    considerations. See, e.g., United States v. Lloyd, 125 F.3d
    1263, 1269 (9th Cir. 1997) (finding the district court should
    have considered whether the parties “actually want[ed] and
    need[ed] a continuance, how long a delay [was] actually
    required, [and] what adjustments [could have been] made
    with respect to the trial calendars [to avoid a continuance]”).

    The Speedy Trial Act and our case law are silent as to
    what non-statutory factors district courts should generally
    consider. Nevertheless, in the context of the COVID-19
    pandemic, we find relevant the following non-exhaustive
    factors: (1) whether a defendant is detained pending trial;
    (2) how long a defendant has been detained; (3) whether a
    defendant has invoked speedy trial rights since the case’s
    inception; (4) whether a defendant, if detained, belongs to a
    population that is particularly susceptible to complications if
    infected with the virus; (5) the seriousness of the charges a
    defendant faces, and in particular whether the defendant is
    accused of violent crimes; (6) whether there is a reason to
    suspect recidivism if the charges against the defendant are
    dismissed; and (7) whether the district court has the ability
    to safely conduct a trial.9

    9 The district court’s order questioned why the Central District of

    California conditioned its ability to hold jury trials on orders issued by
    the state government. See Blueprint for a Safer Economy, available at
    https://covid19.ca.gov/safer-economy/. Specifically, the district court
    observed that under California’s Blueprint, certain essential sectors such
    as healthcare, emergency services, food, and energy were permitted to
    continue operations. This overlooks that the Blueprint’s color-coded
    tiers are premised on several factors that influence the risk of viral
    transmission, including ventilation in particular facilities, whether
    occupants of a facility can socially distance, and the duration of the
    gathering. The record in this case does not allow comparison between
    the federal district court in Santa Ana and nearby state courthouses based
    on the Blueprint’s risk factors.

    20 UNITED STATES V. OLSEN

    This non-exhaustive list, in the context of the pandemic,
    facilitates the proper balancing of whether the ends of justice
    served by granting a continuance outweigh the best interest
    of the public and the defendant in convening a speedy trial.
    See 18 U.S.C. § 3161(h)(7)(A); see also United States v.
    Engstrom, 7 F.3d 1423, 1426 (9th Cir. 1993) (noting that that
    the ends of justice provision promotes “an express balancing
    of the benefit to the public and defendant from a continuance
    with the costs imposed” of such a continuance). The record
    does not show that the district court considered any of these
    relevant factors. See 18 U.S.C. § 3161(h)(7)(A).

    Finally, we note that Olsen’s reliance on United States v.
    Clymer, 25 F.3d 824, 829 (9th Cir. 1994), is not helpful. It
    is true “that the ends of justice exclusion . . . was intended
    by Congress to be rarely used, and that the provision is not a
    general exclusion for every delay.” Clymer, 25 F.3d at 828
    (internal quotation marks and citations omitted); see also
    S. Rep. No. 93-1021, at 39, 41 (1974) (reflecting Congress’s
    intent that ends of justice continuances “be given only in
    unusual cases” and “be rarely used”). But surely a global
    pandemic that has claimed more than half a million lives in
    this country, and nearly 60,000 in California alone, falls
    within such unique circumstances to permit a court to
    temporarily suspend jury trials in the interest of public
    health.10 In approving the Central District’s declaration of

    10 Olsen repeatedly points to state courts in the Central District of

    California for his position that it is not impossible to conduct a jury trial
    safely. But just because state courts are holding jury trials does not mean
    that they are necessarily holding them safely. It is unknown whether
    jurors, witnesses, court staff, litigants, attorneys, and defendants are
    being subject to serious risks and illness. Nothing in the record indicates
    that the Central District was able to hold a jury trial safely in October
    2020, when Olsen’s case was set for trial. Indeed, at argument, Olsen’s
    counsel could not point to anything in the district court’s dismissal order

    UNITED STATES V. OLSEN 21

    judicial emergency, this Court’s Judicial Council explained
    that “Congress did not intend that a district court
    demonstrate its inability to comply with the [Speedy Trial
    Act] by dismissing criminal cases and releasing would-be
    convicted criminals into society.” See Judicial Emergency,
    955 F.3d at 1142–43. That is precisely what the district court
    did here.

    I

    V.

    While it is not necessary to our disposition of this case,
    we also find it important to briefly highlight the district
    court’s additional error in dismissing Olsen’s indictment
    with prejudice. Although the district court recognized the
    charges against Olsen as “extremely serious,” it nevertheless
    dismissed the indictment with prejudice, concluding that it
    was the only sanction that would have “enough teeth to
    create any hope of deterring additional delay in the
    resumption of jury trials.”

    We review the district court’s decision to dismiss with or
    without prejudice for abuse of discretion. United States v.
    Taylor, 487 U.S. 326, 332 (1988). A court abuses its
    discretion if it “failed to consider all the factors relevant to
    the choice” and the “factors it did rely on were unsupported
    by factual findings or evidence in the record.” Id. at 344.
    “In determining whether to dismiss the case with or without
    prejudice, the court shall consider, among others, each of the
    following factors: [(1)] the seriousness of the offense;
    [(2)] the facts and circumstances of the case which led to the

    or the record, aside from noting that the court would have utilized
    unidentified “similar safety precautions” to those state courts did, to
    adequately address these safety concerns. The district court in fact
    acknowledged that even though it was possible to hold trials, there were
    significant health risks in doing so.

    22 UNITED STATES V. OLSEN

    dismissal; and [(3)] the impact of a reprosecution on the
    administration of [the Speedy Trial Act] and on the
    administration of justice.” 18 U.S.C. § 3162(a)(2). A
    court’s decision whether to dismiss the charges with or
    without prejudice depends on a “careful application” of these
    factors to each particular case. Clymer, 25 F.3d at 831.

    Here, the district court failed to adequately consider all
    the relevant factors as applied to Olsen’s case. See Taylor,
    487 U.S. at 344. The district court primarily based its
    decision on the perceived need to deter the Central District
    from continuing its jury trial suspension. Olsen contends
    that the district court based its dismissal with prejudice on
    the factors of only “this particular case.” The record shows
    otherwise. It appears that the only case-specific factor the
    court considered was the seriousness of Olsen’s crimes,
    which it properly weighed against a dismissal with
    prejudice. See United States v. Medina, 524 F.3d 974, 986–
    87 (9th Cir. 2008) (explaining that serious crimes weigh in
    favor of dismissal without prejudice). The remainder of the
    district judge’s three-page analysis focuses only on the
    Central District’s suspension of criminal jury trials and his
    disagreement with his colleagues’ decision to vote in favor
    of suspension. Although the district judge characterized this
    analysis as the “facts and circumstances” that led to
    dismissal, the court entirely failed to consider the facts and
    circumstances of Olsen’s case, including the years of
    continuances Olsen obtained while on pre-trial release and
    the absence of any prosecutorial culpability in causing the
    delay. See United States v. Pena-Carrillo, 46 F.3d 879, 882
    (9th Cir. 1995) (looking for evidence of purposeful
    wrongdoing on part of prosecutor for this factor); accord
    United States v. Stevenson, 832 F.3d 412, 420 (3d Cir. 2016)
    (explaining that this factor considers whether the delay
    stemmed from “‘intentional dilatory conduct’ or a ‘pattern

    UNITED STATES V. OLSEN 23

    of neglect on the part of the Government’”) (quoting United
    States v. Cano-Silva, 402 F.3d 1031, 1036 (10th Cir. 2005)).
    The district court therefore committed legal error in failing
    to consider key factors relevant to Olsen’s case: the absence
    of prosecutorial culpability and the multiple continuances
    requested by Olsen. See Taylor, 487 U.S. at 344.

    The district court also committed legal error in
    evaluating the impact of reprosecution on the administration
    of the Speedy Trial Act and on the administration of justice.
    See 18 U.S.C. § 3162(a)(2). In dismissing Olsen’s
    indictment with prejudice, the district court presumed that
    any adequate remedy must bar reprosecution. The district
    judge characterized dismissal with prejudice as “the only
    sanction with enough teeth to create any hope of deterring
    additional delay in the resumption of jury trials.” The court
    explained that dismissal without prejudice would let the
    government reindict “and proceed as if no constitutional
    violation ever occurred” and concluded that this would be a
    “meaningless result.” This reasoning was incorrect. The
    Supreme Court has made clear that “[d]ismissal without
    prejudice is not a toothless sanction: it forces the
    Government to obtain a new indictment if it decides to
    reprosecute, and it exposes the prosecution to dismissal on
    statute of limitations grounds.” Taylor, 487 U.S. at 342; see
    also United States v. Newman, 6 F.3d 623, 627 (9th Cir.
    1993) (rejecting argument “that dismissal without prejudice
    renders the Speedy Trial Act meaningless”). Because the
    district court’s ruling was based on an erroneous view of the
    law, it abused its discretion in dismissing with prejudice. See
    United States v. Arpaio, 951 F.3d 1001, 1005 (9th Cir. 2020).

    24 UNITED STATES V. OLSEN

    V.

    We reverse the district court’s dismissal of Olsen’s
    indictment. The district court’s interpretation of the Speedy
    Trial Act’s ends of justice provision—that continuances are
    appropriate only if holding a criminal jury trial would be
    impossible—was incorrect. Nothing in the plain text of the
    Speedy Trial Act or our precedents supports this rigid
    interpretation.

    We are, however, mindful that the right to a speedy and
    public jury trial provided by the Sixth Amendment is among
    the most important protections guaranteed by our
    Constitution, and it is not one that may be cast aside in times
    of uncertainty. See Furlow, 644 F.2d at 769 (“Except for the
    right of a fair trial before an impartial jury no mandate of our
    jurisprudence is more important”); see also Roman Cath.
    Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020)
    (“[E]ven in a pandemic, the Constitution cannot be put away
    and forgotten.”).

    The Central District of California did not cast aside the
    Sixth Amendment when it entered its emergency orders
    suspending jury trials based on unprecedented public health
    and safety concerns. To the contrary, the orders make clear
    that the decision to pause jury trials and exclude time under
    the Speedy Trial Act was not made lightly. The orders
    acknowledge the importance of the right to a speedy and
    public trial both to criminal defendants and the broader
    public, and conclude that, considering the continued public
    health and safety issues posed by COVID-19, proceeding
    with such trials would risk the health and safety of those
    involved, including prospective jurors, defendants,
    attorneys, and court personnel. The pandemic is an
    extraordinary circumstance and reasonable minds may differ
    in how best to respond to it. The District Court here,

    UNITED STATES V. OLSEN 25

    however, simply misread the Speedy Trial Act’s ends of
    justice provision in dismissing Olsen’s indictment with
    prejudice.

    The judgment of the district court is REVERSED
    and REMANDED with instructions to reinstate Olsen’s
    indictment, grant an appropriate ends of justice
    continuance, and set this case for a trial.

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