UNITED STATES OF AMERICA, Plaintiff-Appellant, v. JEFFREY OLSEN, Defendant-Appellee.
No. 20-50329
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
APR 23 2021
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
Before: Mary H. Murguia and Morgan Christen, Circuit Judges, and Barbara M. G. Lynn,* District Judge.
Per
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
I.
A.
We have jurisdiction under
B.
The Sixth Amendment guarantees all criminal defendants “the right to a speedy and public trial.”
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.
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 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 Southern Division, where the presiding judge in this action sits, on May 10, 2021. C.D. Cal. General Order 21-07.4
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
2.
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.
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.
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
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 “[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
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 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,
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....”
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”
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 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
In sum, the district court committed clear error by reading the word “impossible” from
By solely focusing on the word “impossible” in
Olsen was indicted in July 2017 on thirty-
The district court’s failure to even mention these
C.
What is more, the district
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
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 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.
IV.
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 dismissal; and [(3)] the impact of a reprosecution on the administration of [the Speedy Trial Act] and on the administration of justice.”
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 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
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, 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.