UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ARMANDO OROZCO-BARRON, AKA Armando Orozco-Baron,
No. 21-50298
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
May 22, 2023
D.C. No. 3:20-cr-02277-LAB-1. Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. Argued and Submitted December 8, 2022, Pasadena, California.
Before: Carlos T. Bea, Sandra S. Ikuta, and Morgan Christen, Circuit Judges.
Opinion by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge Christen
SUMMARY*
Criminal Law
Affirming Armando Orozco-Barron’s conviction for attempted illegal reentry after deportation, the panel held that the district court, in denying Orozco-Barron’s motion to dismiss his information for violations of the Speedy Trial Act, did not clearly err in excluding periods of delay resulting from ends of justice continuances granted due to events caused by the global COVID-19 pandemic.
The focus of the parties’ dispute was on whether the period from August 14, 2020 (the day after the information was filed) until December 1, 2020 (a total of 110 days) was excluded from computing the time within which the trial had to commence under the Speedy Trial Act.
The panel concluded that the district court complied with the applicable statutory requirements. First, the district court’s finding that the ends of justice were best served by granting continuances during the period from August 14, 2020, until December 1, 2020, was timely because the district court put this finding on the record during the July 12, 2021, hearing on the defendant’s motion to dismiss under
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
on the Southern District of California chief judge orders in effect during the time period at issue. In addition to relying on the chief judge orders, the district court made its own findings on the record. The district court also considered the relevant statutory and non-statutory factors when deciding to grant a continuance. The panel wrote that the district court’s findings—both the district court’s statements at the hearing and the chief judge orders incorporated by reference—are consistent with Olsen’s reasoning that a court could appropriately base its decision to grant continuances on the fact that “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.” In light of this court’s ruling in Olsen, and the continuation of the global pandemic, the panel concluded that neither the district court’s factual findings nor its ultimate ends of justice determination were clearly erroneous.
Citing United States v. Carrillo-Lopez, No. 21-10233, __ F.4th __ (9th Cir. 2023), the panel rejected Orozco-Barron’s argument that the district court erred by not dismissing his information on the ground that
Judge Christen concurred in part and dissented in part. She concurred in the majority’s conclusion that
Barron’s pre-trial detention occurred after the Southern District of California had resumed conducting jury trials on a limited basis. As such, the STA and Supreme Court precedent interpreting it required the district court to make case-specific findings before excluding time on the STA clock, which the district court did not do.
COUNSEL
Katherine M. Hurrelbrink (argued), Assistant Federal Public Defender, Federal Public Defenders’ Office, San Diego, California, for Defendant-Appellant.
OPINION
IKUTA, Circuit Judge:
Armando Orozco-Barron appeals his conviction for attempted illegal reentry after deportation in violation of
I
The Speedy Trial Act,
Among other excluded periods,
justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” A continuance granted on this basis is sometimes referred to as an “ends-of-justice continuance.” Zedner v. United States, 547 U.S. 489, 500 (2006).
A district court must comply with certain requirements when granting an ends of justice continuance. First, any period of delay resulting from the continuance must be “specifically limited in time.” United States v. Lloyd, 125 F.3d 1263, 1268 (9th Cir. 1997) (citation omitted). Second, the court must “set[] forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice” outweigh the public’s and defendant’s interest in a speedy trial.
broad discretion to consider any factors based upon the specific facts of each case,” id. at 1046, and a court is not required to address every factor listed in the statute “as long as its reasoning is sufficient to justify excluding the continuance from the Act’s seventy-day limit.” United States v. McCarns, 900 F.3d 1141, 1144–45 (9th Cir. 2018) (citations omitted). District courts may also need “to address relevant non-statutory considerations.” Olsen, 21 F.4th at 1046.
“[I]f a judge fails to make the requisite findings regarding the need for an ends-of-justice continuance, the delay resulting from the continuance must be counted, and if as a result the trial does not begin on time, the indictment or information must be dismissed.” Zedner, 547 U.S. at 508. Therefore, the “failure to make the prescribed findings” to justify a continuance cannot “be excused as harmless error” under “the Act’s categorical terms.” Id.
We have recently “provide[d] guidance on the application of the Speedy Trial Act’s ends of justice provision,
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.” Id.
The district court denied the government’s motion. Id. The court focused on one factor set out in
Olsen reversed in an opinion setting forth important direction for reviewing an ends of justice continuance in an emergency situation such as the one before the district court.
First, Olsen rejected the district court’s narrow reading of
conduct jury trials. See id at 1046–47 nn.9–10. Olsen noted that different courthouses may raise different risk factors, and that courts holding jury trials were not necessarily conducting such trials safely. Id.
Second, Olsen indicated that in evaluating a motion for an ends of justice continuance, a district court cannot limit itself to focusing only on the statutory impossibility factor in
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.” Id. at 1047. Olsen noted our Judicial Council’s explanation 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.” Id. (alteration in original) (citing Judicial Emergency, 955 F.3d at 1142–43).
Olsen also indicated that the Central District’s emergency general orders were a sufficient basis “to pause jury trials and exclude time under the Speedy Trial Act.” Id. at 1049. Olsen observed that “[t]he 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.” Id.; see also id. at 1052 (Murguia, C.J., and Christen, J., concurring in denial of rehearing en banc) (describing Olsen as noting “that the Central District of California’s emergency general orders clearly applied the Speedy Trial Act standard“).
Given the national emergency caused by the COVID-19 pandemic, and the Central District’s suspension of jury trials, Olsen had “no difficulty in concluding that the district court’s failure to grant the government’s motion and subsequent dismissal of [the defendant]’s indictment . . . resulted in a miscarriage of justice.” Id. at 1046. Therefore, Olsen concluded that the government was entitled to an ends of justice continuance, and ordered the district court to grant one and set the case for a trial. Id. at
1049. Olsen also reversed the district court’s dismissal of the defendant’s indictment. Id.
Our conclusion in Olsen is consistent with the conclusions of two of our sister circuits. See United States v. Leveke, 38 F.4th 662, 670 (8th Cir.), cert. denied, 143 S. Ct. 386 (2022) (holding that a district court may properly grant an ends of justice continuance to postpone all jury trials due to the COVID-19 pandemic, and may rely on administrative orders issued by the district); United States v. Roush, No. 21-3820, 2021 WL 6689969, at *1–2 (6th Cir. Dec. 7, 2021), cert. denied, 142 S. Ct. 1187 (2022) (holding that the district court did not abuse its discretion in granting an ends of justice continuance based on the district court’s General Orders pertaining to the management of cases during the COVID-19 pandemic); cf. United States v. Keith, 61 F.4th 839, 851 (10th Cir. 2023) (holding that “[t]he district court acted within its discretion by excluding . . . 85 days from the [Speedy Trial Act] clock” and “support[ing] its ends-of-justice findings by identifying ‘the current state of the COVID-19 pandemic in Oklahoma,’” citing the Western District of Oklahoma’s court-wide General Orders).
II
A
We now turn to the facts of this case. Armando Orozco-Barron is a citizen of
On July 17, 2020 (three months after his most recent deportation to Mexico), he was once again arrested for illegal reentry. When arrested, Orozco-Barron admitted he had no right to enter the United States, and was ordered detained. Orozco-Barron waived indictment. The government filed an information, charging Orozco-Barron with attempted reentry by a deported alien in violation of
As in Olsen, Orozco-Barron’s trial took place against a backdrop of the global COVID-19 pandemic. Beginning on March 17, 2020, Chief Judge Burns of the Southern District of California (who also was the presiding judge of Orozco-Barron’s district court case) declared a judicial emergency, see
prevent the spread of COVID-19,” as well as a range of additional factors, including that the “President of the United States of America, the Governor of the State of California, and the Mayor of the City of San Diego ha[d] declared states of emergency in response to” COVID-19, that the “Centers for Disease Control and Prevention and other public health authorities ha[d] advised that public gatherings be limited to no more than ten people,” that the “United States Attorney for the Southern District” advised “that a quorum of grand jurors [would] not be available,” and that the San Diego federal jail had “restricted access by defense counsel to their incarcerated clients.” Further, the Chief Judge found that the “effect of these public health recommendations and the concerns and restrictions that they have generated ha[d] greatly jeopardized the Court’s ability to obtain an adequate spectrum of trial and grand jurors, and impair[ed] the availability of counsel, witnesses, parties, the public, . . . and Court staff to be present in the courtroom.” Based on these factors, the Chief Judge found that “the period of suspension of criminal trials and other criminal proceedings implemented by this Order” was to be “excluded under the Speedy Trial Act” per
A month later, on April 15, 2020, the Chief Judge issued a second order extending the continuance for an additional period of 30 days. The order stated that the “circumstances giving rise to the judicial emergency ha[d] not materially changed or abated” in the last thirty days, and the “public health emergency continue[d] in the nation, the State of California, and the City of San Diego” due to COVID-19. Therefore, based on the same “factors outlined in [Chief Judge Order] 18” regarding the need “to protect the public safety and prevent the spread” of COVID-19, the Chief Judge extended the emergency orders set forth in Chief Judge Order 18 and found that “this extension serve[d] the ends of justice under
As the COVID-19 pandemic worsened over the following months, the Chief Judge continued to issue substantially similar orders on a monthly basis through the end of the year.7 Each order renewed the suspension of criminal jury trials and trial-specific deadlines in the Southern District for only 30 days, and made the same findings. Four such chief judge orders were issued during
the period from August 14, 2020 to December 1, 2020, and each found that a 30-day continuance of criminal jury trials and trial-specific deadlines “serves the ends of justice under
On August 24, 2020, the Chief Judge issued a “District Trial Reopening Plan” (Chief Judge Order 36). This order provided a protocol for resuming civil and criminal jury trials to the extent possible, starting on August 31, 2020. The protocol noted the severe logistical difficulties in conducting trials “while maintaining the integrity of our health and safety protocol.” In order to conduct trials safely, “[o]nly one trial [would] be set to start per floor per week” because there was “only one large enough room to assemble” jurors, there were “limits on the elevator capacity,” and people needed to “maintain appropriate social distancing.” Since availability and resources had to be divided among the judges in the district, a “rotation plan” was established. The Southern District successfully conducted a total of 14 trials (civil and criminal) under this protocol until December 2, 2020.
On December 3, 2020, California experienced “an unprecedented surge in the level of community spread of COVID-19.” Based on state and local orders in response to this surge, the Chief Judge reinstated a moratorium on conducting in-person court proceedings.
While his case was pending, Orozco-Barron made several filings in district court. He filed a motion to suppress post-arrest statements, which was denied in a hearing on May 19, 2021. He also filed an appeal from the detention order issued by the magistrate judge, which was denied in a hearing on February 3, 2021. Finally, he filed a motion to dismiss the information on the ground that
On June 23, 2021, Orozco-Barron protested the delay in setting a trial date for the first time, by filing a motion to dismiss for violation of the Speedy Trial Act. He claimed that the seventy-day time frame for trial had expired on October 23, 2020. On July 12, 2021, the district court denied the motion. The court stated it was relying “on the pendency of chief judge orders,” which suspended jury trial proceedings for 30-day periods in light of the pandemic emergency.9 The court explained that in June 2021, when Orozco-Barron filed his motion, the Southern District was “still under a chief judge order that limited the number of
jury trials to three per week, only one of which would be in a custody case.” Because “[j]udges had to compete for slots,” the court was unable to schedule Orozco-Barron’s trial any time before July 13, 2021. The court explained that “the pandemic concerns were still in effect all the way through the expiration of that chief judge order,” so “[a]ll of that time was excluded under the order.”
Orozco-Barron’s trial was held on July 13, 2021, and he was convicted by a jury of attempted illegal reentry.
B
On appeal, Orozco-Barron argues that the district court erred in denying his motion to dismiss for violation of the Speedy Trial Act. The focus of the parties’ dispute is on whether the period from August 14, 2020 (the day after the information was filed) until December 1, 2020 (a total of 110 days) is excluded from computing the time within which the trial had to commence under the Speedy Trial Act.10
III
We now turn to the question whether the district court here improperly granted a continuance based on the ends of justice exception.
A
We conclude that the district court complied with the applicable statutory requirements. First, the district court’s finding that the ends of justice were best served by granting continuances during the period from August 14, 2020 until December 1, 2020 was timely because the district court put this finding on the record during the July 12, 2021 hearing on the defendant’s motion to dismiss under
The continuances were also specifically limited in time. See Lloyd, 125 F.3d at 1268. In granting the continuances, the district court “relie[d] on the pendency of [the] chief judge orders.” Each of the orders applicable during this 110-
day period (chief judge orders 34, 40, 47, and 50) incorporated Chief Judge Order 18, which granted only a 30-day continuance. Each of the subsequent monthly orders included the finding that “[m]any of the circumstances giving rise to the judicial emergency” in the district due to COVID-19 had “not materially changed” or “abated” in the preceding 30 days, so they granted an additional 30-day continuance. Accordingly, the district court’s continuances, based on the chief judge orders, were limited in time to successive 30-day periods.12 See Lloyd, 125 F.3d at 1268.
Next, the district court made the requisite findings under
In addition to relying on the chief judge orders, the district court also made its own findings on the record. The court explained that even with mitigating measures, such as “people . . . stay[ing] six feet away from each other” and “wear[ing] masks,” because of the emergency situation due to COVID-19, the operations of the court were severely limited because it was “impossible to select a jury in the
courtrooms,” and the need to protect public health and safety limited each judge‘s ability to conduct a trial. During the period of delay at issue, the court found that the Southern District was “under a chief judge order that limited the number of jury trials,” and judges “had to take turns” to use the available courtrooms, and “had to compete for slots,” using “a lottery form for the” 15 to 17 judges “who [were] trying cases,” so the court could not schedule a case “with any degree of predictability.” The Southern District succeeded in holding only 14 trials during the period from August 14, 2020 until December 1, 2020. Given the chief judge orders and the limitations on scheduling trial, the court concluded “it was impossible, a fact that the Ninth Circuit recognized in [Olsen], for the Court to convene [Orozco-Barron‘s] jury trial any time before” July 13, 2021 due to the COVID-19 pandemic. Based on these pandemic-based restrictions, the district court held that it could not convene Orozco-Barron‘s jury trial before July 13, 2021.
The district court also considered the relevant statutory and non-statutory factors when deciding to grant a continuance. In his statements at the hearing, the district court focused on the factor set forth in
The court‘s findings—both the district court‘s statements at the hearing and the chief judge orders incorporated by reference—are consistent with Olsen‘s reasoning that a court could appropriately base its decision to grant continuances on the fact that “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.” Id. at 1047.
In light of our ruling in Olsen, and the continuation of the global pandemic, we conclude that neither the district court‘s factual findings nor its ultimate ends of justice determination were clearly erroneous. See United States v. Christie, 825 F.3d 1048, 1058 (9th Cir. 2016) (“To be clearly erroneous, a finding must be more than possibly or even probably wrong; the error must be pellucid to any objective observer.” (citation and quotation marks omitted)). The district court based its findings on specific and well-recognized emergency limitations imposed due to health concerns that we recognized in Olsen, and that were present at the time it ordered the delays. Failing to grant a continuance would result in dismissing a criminal case and releasing a defendant charged with a
The dissent argues that the district court failed to consider the relevant factors because its ruling relied on the chief judge orders and did “not reflect consideration of Orozco-Barron‘s detained status during the pre-trial period,” Dissent at 41-42 (citing United States v. Torres, 995 F.3d 695, 704 (9th Cir. 2021)). We disagree. A district court may incorporate the reasoning in general orders when an emergency or disaster has effects that are generally applicable, see infra at 27-28. Nor does Torres require the district court to make a finding on the record regarding the defendant‘s detained status. Rather, in Torres, we deemed that the district court had adequately considered the defendant‘s pretrial detention status because it “was well aware of Torres‘[s] detention status, having previously denied Torres‘s request for release,” and because there was “no indication that the district court failed to consider Torres‘s interest in being free from prolonged pretrial detention when it considered whether the ends of justice justified a continuance.” See 995 F.3d at 707 n.10. Here, the district court likewise was well aware of Orozco-Barron‘s detention status, because it had previously denied Orozco-Barron‘s request for release after holding a hearing, and subsequently recognized that it had been “tough on [Orozco-Barron] in custody.” Thus, there is no indication that the district court failed to consider Orozco-Barron‘s interest in being free from prolonged detention.
B
Orozco-Barron raises several arguments against this conclusion. First, he argues that the district court could not properly rely on the “pendency of chief judge orders” because the orders failed to address all the relevant, non-statutory factors set forth in Olsen. At most, Orozco-Barron argues, the orders relied on Olsen‘s seventh factor (whether the court had the ability to safely conduct trial).
We disagree. It is not necessary for a court to address each of the statutory or non-statutory factors on the record before granting a continuance. The “Speedy Trial Act only requires a district court to state ‘its reasons for finding that the ends of justice served by granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial.‘” McCarns, 900 F.3d at 1144 (alteration in original) (citing
Olsen confirms this conclusion. In Olsen, we held that the district court erred by failing to consider the “miscarriage of justice” factor. 21 F.4th at 1046. We did not suggest it erred by failing to mention each of the other statutory factors. Although we listed seven additional “non-exhaustive” factors that we found relevant in the context of the COVID-19 pandemic, we did not hold that the district court erred by failing to address each non-statutory factor on the record. Id. Rather, we held that the district court has “broad discretion to consider any factors” bearing on the ends of justice determination, and we faulted the district court for failing to consider any relevant non-statutory considerations. Id. (emphasis added). Moreover, Olsen indicated that the findings in the chief judge orders (which are substantially similar to the orders in this case) were adequate “to pause jury trials and exclude time under the Speedy Trial Act,” id. at 1049, even though they did not address the non-statutory factors listed in that opinion.14
Orozco-Barron argues that Olsen did consider all of the non-statutory factors before ordering the district court to issue an ends of justice continuance. See id. at 1056-57 (Murguia, C.J., and Christen, J., concurring in denial of rehearing en banc). Therefore, Orozco-Barron reasons, the district court here should have done the same. But Olsen neither expressly analyzed each factor nor stated that the district court was required to do so. To the contrary, the non-precedential concurrence in Olsen, on which Orozco-Barron relies, indicated that Olsen had implicitly addressed the non-statutory factors on appeal in the first instance. Id. And despite the lack of any express analysis of the non-statutory factors, Olsen “reinstate[d] [the defendant‘s] indictment” and “grant[ed] an appropriate ends of justice continuance.” Id. at 1049 (majority opinion). Therefore, the failure of the district court to expressly address the “suggested” factors Olsen found “relevant” was not an error that violated the Speedy Trial Act.
Second, Orozco-Barron and the dissent contend that the district court erred by failing to make any individualized, case-specific findings. In making this argument, Orozco-Barron and the dissent rely on United States v. Ramirez-Cortez, Dissent at 31-32, 39-40, 44, where a defendant participating in the Southern District‘s fast-track program (which “was instituted to expedite resolution of the large number of illegal re-entry cases” in that district) had requested several continuances of the 30-day pre-indictment time period in order to consider a plea agreement offered by the government. 213 F.3d 1149, 1151 (9th Cir. 2000). The fast-track program‘s expedited schedule frequently “necessitate[d]
This argument fails. In Ramirez-Cortez, the defendant‘s need for a continuance was based on a reason specific to his particular situation, that he needed more time to respond to the government‘s proposed plea agreement. Id. at 1149. But that is not the situation here, where the period of delay was caused by an emergency or disaster that has the same widespread effects on courts and parties alike. In such unusual cases, a district court may properly rely on a generally applicable circumstance to grant an ends of justice continuance, and need not make individualized determinations. See Olsen, 21 F.4th at 1049; see also United States v. Paschall, 988 F.2d 972 (9th Cir. 1993). In Paschall, for instance, a major snowstorm in Portland prevented the grand jury from forming a quorum for eight days. 988 F.2d at 973-74. In light of this event, the Chief Judge issued an order granting an ends of justice continuance for eight days of the 30-day pre-indictment period due to the “extreme adverse weather conditions” and their effect on forming a grand jury. Id. at 974. A district court later relied on the Chief Judge‘s order to deny a defendant‘s motion to dismiss because his indictment was not issued within the 30 days. Id. We rejected the defendant‘s argument that the chief judge and district court failed to make sufficiently “specific findings,” and held that the district court complied with the requirements for granting a continuance under the ends of justice exception by adopting the chief judge‘s order. Id. at 975.15 As in Paschall, the need for a continuance here was not based on any reason specific to Orozco-Barron, but rather due to a global pandemic that required suspending or sharply limiting trials in the Southern District generally. In such circumstances, the reasons for granting the ends of justice continuance need not be particularized to an individual defendant, they need only be appropriate for the situation. See McCarns, 900 F.3d at 1144-45.
Last, Orozco-Barron argues that the chief judge orders could not have supplied the necessary weighing of the ends of justice factors because the chief judge orders during the disputed period (chief judge orders 34, 40, 47, and 50) each stated that “the ends of justice under
C
We conclude that the district court did not err in granting a continuance based on the ends of justice exception because, as we have previously determined, a global pandemic falls within the unique circumstances that permits a court to temporarily suspend a jury trial in the interest of public health and safety.16
AFFIRMED.
CHRISTEN, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority‘s conclusion that
I
“[T]he 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.” Olsen, 21 F.4th at 1049 (citing Furlow v. United States, 644 F.2d 764, 769 (9th Cir. 1981) (per curiam)); see also 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.“).
The STA 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.
To exclude time under the ends-of-justice exception, the district court must “set forth, in the record of the case, either orally or in writing, its reasons” for doing so.
Orozco-Barron did not receive a trial until eleven months after he was charged with a single count of a nonviolent offense—illegal reentry—and he was jailed the entire time he awaited trial. In concluding that this delay did not violate the STA, the district court relied on a series of Chief Judge Orders (CJOs) that suspended all criminal trials in the Southern District of California due to the COVID-19 pandemic. For 93 of the 110 days of pre-trial detention at issue in Orozco-Barron‘s case, the Southern District was conducting jury trials according to its District Trial Reopening Plan.2
The majority affirms the denial of Orozco-Barron‘s motion to dismiss for violation of the STA by overlooking that trials had resumed in the Southern District during most of the time he was in jail awaiting trial. The majority also misreads Olsen and disregards that the district court made no case-specific findings concerning the circumstances of Orozco-Barron‘s
My colleagues offer various theories to affirm the district court‘s order denying Orozco-Barron‘s motion to dismiss, but none of them withstand scrutiny. First, the majority relies on Olsen to conclude that “a district court may properly rely on a generally applicable circumstance [here, the pandemic] to grant an ends of justice continuance, and need not make individualized determinations.” See Maj. Op. at 27. At this first step, the majority errs in two ways: (1) it overlooks that the question presented in Olsen was the district court‘s statutory interpretation of the STA, not the interpretation of the general orders that suspended jury trials after the pandemic broke out; and (2) it skips over the facts that Orozco-Barron was detained pre-trial and nearly all of the excluded time at issue in this case occurred after jury trials had resumed. Next, the majority asserts that the district court did “consider[] the relevant statutory and non-statutory factors when deciding to grant a continuance,” Maj. Op. at 21, but this assertion is contrary to the record. Finally, the majority suggests that Olsen allows case-specific factors to be considered in the first instance on appeal. Maj. Op. at 26. This theory fails because Supreme Court precedent does not permit harmless-error review of ends-of-justice exclusions. See Zedner, 547 U.S. at 508-09.
The suspension of criminal trials during the pandemic was an extraordinary measure and we have scant case law addressing the application of the STA to protracted emergency closures or the reopening of courts after emergency closures.3 In my view, the STA and controlling precedent required case-specific, on-the-record findings in order to invoke the ends-of-justice exception and stop the speedy trial clock once trials resumed. Unfortunately, the district court‘s brief discussion did not include such findings or the balancing the STA requires.
II
Orozco-Barron was arrested for illegal reentry,
The Chief Judge of the Southern District of California issued CJO 18 when the COVID-19 pandemic began in March 2020. That order temporarily suspended criminal trials for 30 days and provided that this “period of suspension” was “excluded under the Speedy Trial Act” because “[the] continuances serve the ends of justice and outweigh the interests of the public, of the government, and of criminal defendants in a speedier trial.” See
No developments occurred in Orozco-Barron‘s case between his arraignment in August and a hearing held on October 21, 2020, when the district court postponed
The parties agree that the period between December 2, 2020 and May 19, 2021, was validly excluded from the STA clock due to continuances or pending motions that automatically excluded time. The government assumes for purposes of appeal that the STA clock ran in the 33-day period between May 20 and June 21, 2021. Thus, if the delay between August 13 and December 2, 2020 is counted, a total of 143 days had elapsed on the STA clock by June 21, 2021, and Orozco-Barron‘s right to a speedy trial was violated. See
On June 21, 2021, nearly a year after he was first arrested, Orozco-Barron moved to dismiss his illegal reentry charge pursuant to the STA. The district court rejected Orozco-Barron‘s argument that 143 non-excludable days had passed, ruling that “[a]ll of that time was excluded under the [CJOs].” When the government urged that the court could “take a belt and suspenders approach” by “supplement[ing] its findings,” the district court stated that it was “rel[ying] on the pendency of [the] chief judge orders” to deny Orozco-Barron‘s motion to dismiss. The court briefly explained that the CJOs were issued because various public health guidelines requiring social distancing made it difficult to select a jury or hold trials during the early months of the COVID-19 pandemic. The court acknowledged that jury trials were not suspended altogether between August and late November 2020, but observed that the number of jury trials was limited to three per week, only one of which could be for an in-custody case, and judges had to compete for slots. Based on the CJOs, the district court concluded, “[T]he bottom line was that it was impossible, a fact the Ninth Circuit recognized in [Olsen], for the Court to convene Mr. Orozco‘s jury trial any time before [July 13, 2021].”
The district court misread Olsen. Our decision there did not endorse a rule that the existence of a CJO alone could justify the indefinite delay of an incarcerated defendant‘s right to trial. To the contrary, Olsen explained that the district court in that case had erred by interpreting the STA to require denial of the government‘s motion to continue because conducting a trial was not physically impossible during the pandemic. 21 F.4th at 1045. In Olsen, the district court dismissed with prejudice serious charges against a physician who was indicted after a six-year investigation on thirty-four counts related to the unlawful distribution of opioids. Id. at 1040, 1043-44. The government alleged that Dr. Olsen‘s distribution of dangerous combinations and quantities of opioids resulted in multiple deaths. Id. at 1042. Dr. Olsen was not detained pending trial—in fact, despite the gravity of the charges against him, he had spent no time at all in pre-trial detention—and he had been granted eight continuances, postponing trial for over three years, prior to invoking his speedy trial rights when the COVID-19 pandemic broke out. Id. at 1040, 1042. The last continuance prior to the onset of the pandemic was granted despite the fact that the government was ready for trial, and it was granted over the government‘s objection. Id. at 1042.
Olsen explained that the district court read
The issue presented in Olsen was a matter of statutory interpretation, not whether the Central District‘s general orders could indefinitely suspend jury trials. See id. at 1044-45, 1049 (reversing the district court‘s dismissal because its interpretation of the ends-of-justice provision was incorrect); id. at 1053 (Murguia, C.J., and Christen, J., concurring in the denial of rehearing en banc) (observing that the question presented was whether the district court misinterpreted the STA). The district court in Olsen disregarded the general orders and relied only on its interpretation of the STA. In stark contrast, the district court in Orozco-Barron‘s case relied entirely on the CJOs, even though Orozco-Barron was accused of a nonviolent offense, he was jailed the entire time he awaited trial, and jury trials had resumed on a limited basis in the Southern District for most of the pre-trial period at issue. These differences between Olsen and Orozco-Barron‘s case sharply illustrate why case-specific considerations are necessary for the balancing required by the STA.
I agree with the majority that the STA does not require a district court to incant magic words, but our precedent requires that a reviewing court assess the validity of an STA exclusion based on the actual reasons offered for a district court‘s ends-of-justice conclusion, not post hoc reasons that could have justified the exclusion. See Ramirez-Cortez, 213 F.3d at 1154 (reversing an ends-of-justice exclusion when, after a magistrate judge granted “blanket continuances” for cases pending in a “fast track” program, the district court acknowledged the lack of individualized findings, yet inferred case-specific reasons supporting the exclusion). The district court‘s order denying Orozco-Barron‘s motion to dismiss solely relied on the CJO orders suspending jury trials, without considering the specific circumstances of Orozco-Barron‘s case.
Undeterred by the issue actually presented in Olsen and our result there, the majority shortcuts the analysis required by the STA and decides that because CJOs limited jury trials in the Southern District during the pre-trial phase of Orozco-Barron‘s case, the CJOs alone were sufficient
The majority‘s decision is incorrect. The STA‘s ends-of-justice provision requires “balancing . . . 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,” which necessitates consideration of case-specific information.
B
The majority fails to explain its departure from our precedent. It first suggests that the district court could have permissibly relied solely on the CJOs—interpreting Olsen to provide that in “unusual cases” like the COVID-19 pandemic, “a district court may properly rely on a generally applicable circumstance to grant an ends of justice continuance, and need not make individualized determinations.” Maj. Op. at 27. In support, the majority analogizes to United States v. Paschall, 988 F.2d 972 (9th Cir. 1993), where we upheld an eight-day ends-of-justice continuance of grand jury proceedings due to a major snowstorm in Portland. Id. at 27 (citing Paschall, 988 F.3d at 973-74). We also upheld a two-week continuance in Furlow, after Mt. St. Helens erupted. 644 F.2d at 767-68.
Paschall and Furlow concerned only brief and finite delays of proceedings. The outcomes in those cases cannot be stretched to accommodate across-the-board ends-of-justice exclusions for all pandemic-related STA continuances, for months or even years on end, especially when jury trials had resumed on a limited basis. Because there was no limit to the number of 30-day suspensions the pandemic may have required, the majority‘s reasoning would allow indefinite suspensions of criminal jury trials based solely on blanket general orders. As Olsen recognized, if
The majority‘s second theory is that the district court did in fact “consider[] the relevant statutory and non-statutory factors when deciding to grant a continuance.” Maj. Op. at 21. The record shows otherwise. The district court relied solely on the CJOs in place during the disputed time period and its understanding that Olsen sanctioned reliance on the CJOs alone. Critically, the district court‘s ruling does not reflect consideration of Orozco-Barron‘s detained status during the pre-trial period. See Torres, 995 F.3d at 704 (“[W]e can envision no circumstance in which a district court could properly fail to consider a detained defendant‘s status when addressing a motion to continue the trial.“); see also Olsen, 21 F.4th at 1063 (Bumatay, J., concurring in the denial of rehearing en banc) (“[T]his case would be very different if Olsen had been detained during the COVID-19 pandemic and had suffered the deprivation of his liberty while the California federal district court shut down indefinitely.“).
Finally, the majority opinion posits that appellate courts may consider case-specific “non-statutory factors on appeal in the first instance.” Maj. Op. at 26. The majority relies on Olsen for this assertion, but Olsen did not signal that an otherwise deficient ends-of-justice exclusion could be affirmed based on post hoc reasoning. Rather, Olsen discussed case-specific information raised by the government in its motion for a continuance when explaining that the district court erred, in part because it failed to consider that highly relevant information when conducting ends-of-justice balancing. See 21 F.4th at 1042-44, 1046-48. The majority‘s suggested approach would amount to harmless-error review, which the Supreme Court has cautioned does not apply to appellate review of ends-of-justice exclusions. In Zedner, the Supreme Court held that an ends-of-justice exclusion cannot be justified by post hoc reasoning:
Applying the harmless-error rule would . . . undermine the detailed requirements of the provisions regulating ends-of-justice continuances. The exclusion of delay resulting from an ends-of-justice continuance is the most open-ended type of exclusion recognized under the Act and, in allowing district courts to grant such continuances, Congress clearly meant to give district judges a measure of flexibility in accommodating unusual, complex, and difficult cases. But it is equally clear that Congress, knowing that the many sound grounds for granting ends-of-justice continuances could not be rigidly structured, saw a danger that such continuances could get out of hand and subvert the Act‘s detailed scheme. The strategy of
§ 3161(h)([7]) , then, is to counteract substantive openendedness with procedural strictness. This provision demands on-the-record findings and specifies in some detail certain factors that a judge must consider in making those findings. Excusing the failure to make these findings as harmless error would be inconsistent with the strategy embodied in§ 3161(h) .
Id. at 508-09. Our circuit precedent also requires that the district court‘s rationale for an ends-of-justice exclusion be explicitly set forth in the district court record, not supplied by the reviewing court. See United States v. McCarns, 900 F.3d 1141, 1144 (9th Cir. 2018) (providing that the district court‘s “reasoning [must be] sufficient to justify excluding the continuance from the Act‘s seventy-day limit“); Ramirez-Cortez, 213 F.3d at 1154-55 (holding that a district court could not supply findings that might have supported an ends-of-justice continuance when a magistrate judge granted the continuance without making the requisite findings in the first instance).
* * *
When assessing Orozco-Barron‘s STA claim, the district court did not make case-specific findings and relied solely on CJOs that applied to every defendant in the Southern District of California. Yet jury trials had resumed on a limited basis. Given the importance of the speedy trial right and the circumstances of this case, I conclude that the STA required the district court to make case-specific findings. The district court may have permissibly reached the same result if it had conducted the required balancing, but we are not permitted to “speculate as to the ‘findings’ that might support an ‘ends of justice’ continuance” on appeal. Ramirez-Cortez, 213 F.3d at 1155. I would therefore reverse the order denying Orozco-Barron‘s motion to dismiss under the STA, and remand for the district court to determine whether the dismissal should be with or without prejudice.6
Notes
21 F.4th at 1046-47.(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.