UNITED STATES OF AMERICA v. ROBERT DUNN
No. 22-11731
United States Court of Appeals For the Eleventh Circuit
Date Filed: 10/10/2023
[PUBLISH]
Before JORDAN, ROSENBAUM, and HULL, Circuit Judges.
D.C. Docket No. 9:20-cr-80085-RKA-1
HULL, Circuit Judge:
After entering a conditional guilty plea, Defendant Robert Dunn appeals his convictions on four counts related to child pornography. At the start of the COVID-19 global pandemic, Dunn was arrested on a criminal complaint on March 10, 2020. Thereafter, the district court in the Southern District of Florida entered a series of pandemic-related administrative orders that, inter alia, continued grand jury sessions five times in the ends of justice spanning March 26, 2020, to November 16, 2020. Due to the pandemic, a grand jury did not formally indict Dunn until December 1, 2020.
On appeal, Dunn argues that the district court erred in denying his motion to dismiss his indictment for failure to indict him within thirty days from his arrest, as required by the Speedy Trial Act,
I. FACTUAL BACKGROUND
A. Arrest at Start of COVID-19 Pandemic
On March 10, 2020, federal agents arrested Dunn on a criminal complaint charging he had received and possessed child
The next day, on March 11, the World Health Organization declared the COVID-19 outbreak a global pandemic. On March 13, the President of the United States declared a national emergency. See Proclamation No. 9994, 85 Fed. Reg. 15337, 15337 (Mar. 13, 2020).
B. First Pandemic Administrative Order on March 13
On March 13, 2020, then-Chief Judge K. Michael Moore of the Southern District of Florida entered Administrative Order 2020-18, the first of many responding to the COVID-19 pandemic. Administrative Order 2020-18 found that “the Centers for Disease Control and Prevention and other public health authorities have advised the taking of precautions to reduce the possibility of exposure to the coronavirus and COVID-19 and slow the spread of disease.” The order stated it (1) was issued “in order to protect public health, and in order to reduce the size of public gatherings and reduce unnecessary travel“; (2) continued jury trials until March 30, 2020; and (3) continued until further order any trial-specific deadlines in criminal cases scheduled to begin before March 30, 2020 (the “pandemic order“).
The March 13 pandemic order also provided that criminal matters before magistrate judges shall continue and that grand juries shall continue to meet pending further order of the court.
The pandemic order also provided that the time period of the continuances between March 16 and 30, 2020, were excluded from the speedy trial clock under the Speedy Trial Act‘s ends-of-justice exception in
C. First Magistrate Judge Continuance in Dunn‘s Case from March 16 to April 6
After consulting with Dunn‘s counsel, the government filed an unopposed motion to continue Dunn‘s arraignment until April 6, 2020. The March 16 motion stated that “[d]ue to the unforeseen nature of the global coronavirus pandemic, the government and its agents will not be able to prepare properly for Grand Jury, or confirm that a quorum for Grand Jury will be available, such that an Indictment is returned before the arraignment set for March 24, 2020.” Citing
The same day, a magistrate judge granted the government‘s continuance motion in Dunn‘s specific case and set Dunn‘s arraignment to April 6. The magistrate judge‘s March 16 pandemic order stated: (1) “[i]n light of the current public health emergency, the interests of justice require the Court to take additional steps to
The magistrate judge‘s order expressly referenced the Chief Judge‘s Administrative Order 2020-18, which also addressed the COVID-19 pandemic and need to reduce public gatherings and the spread of the disease. It noted that Administrative Order 2020-18 allowed individual judges presiding over criminal matters to take such action consistent with that order and “as may be lawful and appropriate to ensure the fairness of the proceedings and preserve the rights of the parties.” The magistrate judge‘s order excluded the time from March 16 to April 6 under the Speedy Trial Act, finding the “ends of justice” were served by the continuance and outweighed the interests of the parties and the public in a speedy trial.1
D. Second Criminal Complaint
On March 19, the government filed a second criminal complaint adding charges of: (1) conspiracy to produce and production of child pornography, in violation of
On March 20, Chief Judge Moore entered Administrative Order 2020-21. This second administrative pandemic order was issued in conjunction with Administrative Order 2020-18, the first pandemic order, and, among other things, continued jury trials until April 27, 2020.
Administrative Order 2020-21 again allowed individual judges to enter continuances in criminal proceedings and excluded time periods for such continuances under the Speedy Trial Act‘s ends-of-justice exception. It also incorporated by reference its ends-of-justice determination and the “period of exclusion” in Administrative Order 2020-18 “as specific finding[s] pursuant to
F. Grand Jury Sessions Continued From March 26 to April 27
Six days later, on March 26, Chief Judge Moore entered Administrative Order 2020-22, which expressly stated that it was issued in conjunction with Administrative Order 2020-18 and Administrative Order 2020-21, the first and second pandemic orders. This time, Administrative Order 2020-22 continued all grand jury sessions until April 27 and excluded the time period from March 16 to April 27 from the speedy trial clock under the ends-of-justice exception “pursuant to
Among other things, the March 26 pandemic order: (1) found that “the ends of justice served by taking this action outweigh the interests of the parties and the public in a speedy trial
G. Four Subsequent Administrative Orders Collectively Continued Grand Jury Sessions Through November 16
Subsequent Administrative Orders, entered in April, May, June and August 2020 contained substantially the same language as Administrative Order 2020-22. These Administrative Orders extended the continuance of grand jury sessions and excluded the continuance period from the speedy trial clock based on an ends-of-justice finding.
Each Administrative Order included express references to the first pandemic order in Administrative Order 2020-18 and each successive Administrative Order related to the pandemic. Each Administrative Order also stated that it was acting “pursuant to
As a result of these pandemic-related Administrative Orders, no grand jury sessions occurred in the Southern District of Florida between March 26, 2020, and November 16, 2020.
H. Magistrate Judges Periodically Continue Dunn‘s Arraignment
Meanwhile, after Chief Judge Moore continued all grand jury sessions, individual magistrate judges presiding over Dunn‘s criminal proceedings continued his arraignment several times.
The first, 45-day continuance—from April 6 to April 27—was based on the government‘s unopposed motion filed on March 30, 2020. The government‘s motion cited Administrative Order 2020-22 “formally cancelling” grand jury sessions until April 27 and stated that “the Government is unable to Indict the above-entitled case prior to the currently scheduled arraignment date of April 6, 2020, nor at least until April 27, 2020.” The government represented that the parties agreed that: (1) the ends of justice were served by continuing arraignment and outweighed the interest of the public and the defendant in a speedy trial; (2) Dunn‘s arraignment and preliminary hearing should be reset for May 21; and (3) the “time should be excluded from the speedy trial period in this case.”
On March 31, 2020, a magistrate judge granted the government‘s motion and reset Dunn‘s arraignment and preliminary hearing for May 21 as requested. The magistrate judge
Dunn‘s preliminary hearing was held by videoconference on May 20.2 The magistrate judge concluded the government established probable cause as to the offenses set forth in the two complaints. However, because there still was no grand jury in session and thus no indictment, Dunn was not arraigned at that time. During the hearing, the prosecutor advised that: (1) he was “waiting for the grand jury to reopen” to seek an indictment; and (2) he discussed with Dunn‘s defense counsel about “possibly proceeding on an information pending a grand jury” but remained “in a holding pattern.”
The magistrate judge responded that Dunn had a right to wait and have the case presented to a grand jury when it reconvened. The magistrate judge entered an order excluding the time from May 20 to July 6 under the Speedy Trial Act “[p]ursuant to Administrative Order 2020-24,” which was the most recent Administrative Order continuing grand jury sessions to July 6, 2020 due to the pandemic.
On July 6, a magistrate judge held a status conference via videoconference regarding Dunn‘s arraignment. The magistrate
The magistrate judge acknowledged the most recent, pandemic-related Administrative Order 2020-41 that continued grand jury sessions until October 13, 2020, and excluded that time from the speedy trial clock. With the parties’ agreement, the magistrate judge concluded he would reset Dunn‘s arraignment for October 21, 2020, “pursuant to the CARES ACT and the administrative orders that have been entered, including 2020-41.”
The magistrate judge found that it was “necessary in the interests of justice” to toll the speedy trial period due to the coronavirus pandemic and that the interests of justice “outweigh[] any interest of the Defendant or the public in a speedy trial.” The magistrate judge also confirmed that Dunn understood “grand juries are currently suspended” and were not expected to resume until “around October 13, 2020, if all goes well,” at which time the government would be able to obtain an indictment. Afterward, the magistrate judge reset Dunn‘s arraignment for October 21, 2020, and reiterated his ends-of-justice findings “as stated on the record.”
On October 20, 2020, Dunn filed an unopposed motion to continue his arraignment for 90 days and to exclude that time from the speedy trial calculations. Dunn‘s motion explained that his
The next day, a magistrate judge granted Dunn‘s motion, reset his arraignment for January 20, 2021, as Dunn requested, and excluded the time period from October 20, 2020, to January 20, 2021, from the speedy trial calculations “because the ends of justice served by this delay outweigh the interests of the defendant and of the public in a speedy trial.”
I. Dunn‘s December 1 Indictment
On October 20, 2020, Chief Judge Moore issued Administrative Order 2020-76, which permitted limited grand jury sessions to resume on November 16, 2020. That Administrative Order stated that “[t]he U.S. Attorney‘s Office and Clerk of Court have advised that they can safely convene no more than two grand jury sessions per week starting that date.”
On December 1, 2020, a grand jury indicted Dunn on five offenses: (1) conspiracy to produce child pornography, in violation of
In a thorough December 29, 2020 order, the district court set a trial date of April 12, 2021, and found the COVID-19 pandemic had made “jury trials unfeasible for the foreseeable future” because: (1) local jails were in “lock down“; (2) defense lawyers were unable “to meet with their clients, confer with the Government, or prepare their cases for trial“; and (3) “millions of Americans [had] to quarantine themselves in their homes” or “remove themselves only sparingly.”
Given the COVID-19 pandemic, the district court found that: (1) under
On January 21, 2021, Dunn filed a motion to dismiss his indictment with prejudice based on the eight-month delay between his arrest on March 10 and his indictment on December 1, 2020. Dunn argued the delay violated the Speedy Trial Act‘s thirty-day time limit. Dunn challenged various aspects of Chief Judge Moore‘s pandemic Administrative Orders and the magistrate judges’ pandemic continuance orders.5 The government opposed Dunn‘s motion.
K. Denial of Dunn‘s Motion to Dismiss the Indictment
In a comprehensive October 1, 2020 order, the district court denied Dunn‘s motion to dismiss his indictment. The district court found that the COVID-19 pandemic had killed hundreds of thousands of Americans, forced millions of others to quarantine in their homes, and disrupted grand jury operations. The district court explained that grand jury proceedings had been “unfeasible” under the circumstances and that the delay in indictment was
The district court reviewed in detail the history of the above pandemic-related Administrative Orders and the magistrate judges’ continuance orders in Dunn‘s specific case.
The district court pointed to its three trial orders extending Dunn‘s trial date and excluding that time from the speedy trial clock. The district court explained its view “that, as a practical matter, the Covid-19 pandemic made the process of empaneling juries (whether grand or petit) unfeasible and dangerous” and that its earlier findings guide its inquiry in ruling on Dunn‘s motion. The district court concluded that its findings, although made post-indictment, were “relevant to [its] analysis” because “they put [the court‘s] specific ‘findings’ about the feasibility of calling jurors” on the record by the time it ruled on Dunn‘s motion to dismiss, as required by the Supreme Court‘s decision in Zedner v. United States, 547 U.S. 489 (2006).
The district court concluded that “the district-wide orders in this case did include specific ‘on-the-record findings’ that, because of the raging pandemic, ‘the ends of justice served by [the continuance] outweigh the interests of the parties and the public in a speedy trial‘” that were “expressly applied . . . to every criminal case then pending in our District.” And in any event, the magistrate judges who granted the various agreed-upon motions to continue Dunn‘s arraignment also “made specific ends-of-justice
The district court stated that a “review of those proceedings” left “no doubt about the magistrate judges’ reasons for granting these continuances,” noting they had cited the ongoing pandemic as the justification. Agreeing with the magistrate judges’ assessments, the district court stated “the continuances were necessary to protect the health and safety of lawyers, jurors, and court staff. They were also an important way of protecting the rights of the accused—who, given the shutdowns at local jails, had no way of meeting (or adequately consulting) with their lawyers.”
The district court observed that “21 separate ends-of-justice findings” had been made on the record in Dunn‘s case by different judges. The district court concluded these “ends of justice” findings were “plainly sufficient to satisfy the Speedy Trial Act” and to exclude from the speedy trial clock all the time between Dunn‘s arrest and his indictment, except for the first six days, which no
J. Conditional Guilty Plea
In December 2021, Dunn pled guilty to Counts 1, 2, 4, and 5, in exchange for dismissal of Count 3, pursuant to a plea agreement. Dunn‘s plea was conditioned on his right to seek appellate review of only “the denial of his pro se motion to dismiss the indictment . . . as to his statutory speedy trial rights only and to no other issue in the order.”
As part of the plea, Dunn signed a proffer of facts, which he stipulated the government could prove beyond a reasonable doubt. The factual proffer recounted that in September 2019, the Federal Bureau of Investigation (“FBI“) began investigating Dunn after Google reported that accounts linked to Dunn were being used to store child pornography. Dunn, a registered sex offender, was convicted in 2014 of traveling to meet a parent to solicit/entice a child to commit a sex act and of attempted lewd or lascivious battery of a child. Search warrants returned from Google confirmed Google‘s cyber tips. The FBI then executed a search warrant at Dunn‘s Florida residence. Dunn‘s laptop contained dozens of images and at least eight videos of child sexual abuse. Dunn admitted downloading and distributing child pornography
The factual proffer further stated that after Dunn‘s arrest, the FBI arrested Tonya Bagley in Colorado. Through search warrants, the FBI found evidence that in November 2019 Dunn and Bagley entered into a “master-slave” relationship, and Dunn directed Bagley to take and send photographs of her performing oral sex on her six-year-old son via Facebook Messenger, which she did.
At the plea hearing, the district court accepted Dunn‘s conditional guilty plea. At sentencing, 93 victims were identified from 163 images of child pornography found on Dunn‘s laptop and cellphone. The district court imposed a total sentence of 600 months’ imprisonment, followed by a lifetime of supervised release. Dunn was ordered to pay restitution to Bagley‘s six-year-old son and to five of the victims identified in the child pornography images.
II. GENERAL PRINCIPLES
A. Standard of Review
We review de novo the district court‘s denial of a motion to dismiss based on a violation of the Speedy Trial Act, and for clear error its factual determinations as to excludable time. United States v. Ammar, 842 F.3d 1203, 1208 (11th Cir. 2016). A district court‘s decision to grant or deny an ends-of-justice continuance under the
B. “Ends-of-Justice” Continuances Under the Speedy Trial Act
The Speedy Trial Act requires the government to file an indictment or information against a defendant within thirty days from the date on which the defendant was arrested or served with a summons in connection with the charges.
The Act, however, excludes certain “periods of delay” when computing the thirty-day time limit.
Specifically,
In turn,
Courts have broad discretion in weighing these factors. United States v. Henry, 698 F.2d 1172, 1174 (11th Cir. 1983).
After Dunn‘s arrest on March 10, the speedy trial clock started running on March 11, 2020. See United States v. Skanes, 17 F.3d 1352, 1353 (11th Cir. 1994) (holding the day the defendant is arrested is not counted for purposes of the Speedy Trial Act‘s thirty-day time limit). If proper, the above ends-of-justice continuances tolled the speedy trial clock from March 16 up to Dunn‘s indictment on December 1, 2020, without interruption. That results in no Speedy Trial Act violation.
On appeal, Dunn challenges these orders in several ways, which we address in turn.
A. Magistrate Judge‘s March 16, 2020, Continuance
Dunn argues that in his March 16, 2020, order, the magistrate judge abused his discretion in granting the government‘s very first motion to continue Dunn‘s arraignment until April 6, 2020. Dunn contends the magistrate judge improperly accepted without further inquiry the government‘s representations that due to the pandemic it was unable (1) to prepare properly for the grand jury or (2) to ensure that a quorum of the grand jury would be present. Dunn argues this “directly contradict[ed]” Administrative Order 2020-18, which directed grand jury sessions and arraignments to continue.
Contrary to Dunn‘s argument, nothing in Administrative Order 2020-18 precluded an individual magistrate judge from granting a short ends-of-justice continuance due to difficulties presented by the pandemic. Instead, Administrative Order 2020-18
Furthermore, the magistrate judge‘s continuance order cited Administrative Order 2020-18, noted that it gave him this discretion, and explained that the “public health emergency” required him to take “additional steps to protect the health and safety of the parties, counsel, and court staff” and to ensure that incarcerated defendants like Dunn were able to have meaningful consultation with their counsel.
And the unopposed motion was providently granted, given that within ten days, on March 26, Chief Judge Moore entered Administrative Order 2020-22, continuing all grand jury sessions in the Southern District until April 27, 2020, due to the pandemic. Under the circumstances, Dunn has not shown an abuse of discretion.
B. Dunn‘s Speedy Trial Act Claim
Next, Dunn argues that neither Chief Judge Moore‘s pandemic-related Administrative Orders nor the magistrate judges’ pandemic-related continuance orders made sufficient findings required by
As already mentioned, the Speedy Trial Act “requires that when a district court grants an ends-of-justice continuance, it must set forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice are served and they
As to Chief Judge Moore‘s Administrative Orders, Dunn argues that even in a pandemic, “all-inclusive blanket continuances” applied to every pending case in the district are not “case-specific” and therefore cannot satisfy
The government points out that our sister circuits have held that the national public health emergency caused by the global COVID-19 pandemic provided sufficient justification for a district court‘s district-wide blanket order temporarily continuing jury trials during this pandemic and excluding that time under the Speedy Trial Act‘s ends-of-justice exception. See United States v. Keith, 61 F.4th 839, 844, 851 (10th Cir. 2023) (jury trials); United States v. Leveke, 38 F.4th 662, 670 (8th Cir. 2022) (same), cert. denied, 143 S. Ct. 386 (2022); United States v. Olsen, 21 F.4th 1036, 1049 (9th Cir. 2022) (same), cert. denied, 142 S. Ct. 2716 (2022); United States v. Roush, No. 21-3820, 2021 WL 6689969, *2 (6th Cir. Dec. 7, 2021) (same), cert. denied, 142 S. Ct. 1187 (2022).
In Dunn‘s case, however, we need not reach or decide the question of whether the district-wide Administrative Orders here were sufficient for ends-of-justice purposes under the Speedy Trial Act. This is because the magistrate judges’ continuances entered in Dunn‘s specific case were sufficient.
Here, the record establishes that all five magistrate judge continuances were granted due to health and safety concerns and restrictions arising from the COVID-19 pandemic. The first, the March 16 order continuing Dunn‘s arraignment from March 24 to April 6, was entered just days after the global pandemic was declared a national emergency. The order explained that because of “the current public health emergency” the continuance was required “to protect the health and safety of parties, counsel, and
Moreover, the record is clear that in Dunn‘s case the parties sought, and the magistrate judges granted, periodic continuances of his specific arraignment because Chief Judge Moore had continued grand jury sessions to protect public health and reduce the exposure to, and spread of, COVID-19 through large public gatherings. Indeed, three of the four magistrate judge orders continuing Dunn‘s arraignment due to the unavailability of a grand jury (March 31, 2020, July 6, 2020, and October 20, 2020) also included an explicit finding that the ends of justice served by the continuance outweighed the interests of Dunn and the public in a speedy trial. One order (May 20, 2020) did expressly refer to Chief Judge Moore‘s then-latest Administrative Order 2020-24 continuing grand jury sessions due to the pandemic, which had made an express ends-of-justice finding, and that May 20, 2020, order in effect incorporated that ends-of-justice finding into Dunn‘s specific case.
The fact that all grand jury sessions in the Southern District were temporarily continued due to the COVID-19 pandemic provided sufficient justification to continue temporarily Dunn‘s arraignment. And, under the COVID-19 pandemic circumstances, the magistrate judges were not required to make more case-specific, ends-of-justice findings, beyond the COVID-19 pandemic-
Dunn also contends the magistrate judge‘s orders did not provide indicia that the
Moreover, the district court is not limited to considering the statutory factors. See id.;
As to the remaining continuances in Dunn‘s case, each was sought and granted because Chief Judge Moore‘s pandemic-related Administrative Orders temporarily continued grand jury sessions. Those Administrative Orders, in turn, explicitly cited
C. District Court‘s Order
As an alternative and independent ground, we also take time to point out that the district court‘s comprehensive order—denying Dunn‘s motion to dismiss his indictment—was alone sufficient to toll the speedy trial clock. See Zedner, 547 U.S. at 506-07 (providing that, while the best practice is to make contemporaneous ends-of-justice findings, a district court may put its ends-of-justice findings on the record at the latest when it “rules on a defendant‘s motion to dismiss under
The district court‘s excellent order explained in detail why public health concerns due to the COVID-19 pandemic made it necessary for Chief Judge Moore to continue grand jury sessions in the Southern District and therefore for the magistrate judges to
IV. CONCLUSION
Because the government filed Dunn‘s indictment within the Speedy Trial Act‘s thirty-day time limit in
AFFIRMED.