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).
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
* 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.
- Summary
- Counsel
Opinion