United States v. Tommy Walker ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 21-10364
21-10365
Plaintiff-Appellee,
D.C. Nos.
v. 2:20-cr-00039-
KJM-1
TOMMY LEE WALKER, 2:20-cr-00206-
KJM-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding
Argued and Submitted November 14, 2022
San Francisco, California
Filed May 30, 2023
Before: Sidney R. Thomas and Mark J. Bennett, Circuit
Judges, and Barry Ted Moskowitz,* District Judge.
Opinion by Judge Bennett
*
The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
2 UNITED STATES V. WALKER
SUMMARY**
Criminal Law
The panel affirmed Tommy Walker’s conviction for
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1) and the revocation of his supervised
release in a prior case.
Walker was not tried until 557 days after his indictment
largely because of the COVID-19 pandemic. Over Walker’s
objection, the district court excluded much of this time from
the Speedy Trial Act calculation using the “ends of justice”
provision of the Act, 18 U.S.C. § 3161(h)(7)(A), and, as a
result, denied Walker’s Sixth Amendment and Speedy Trial
Act motions to dismiss his indictment.
The panel held that the district court properly excluded
time under the ends of justice provision. The panel held that
the non-exhaustive factors set forth in United States v. Olsen,
21 F.4th 1036 (9th Cir. 2022), support the district court’s
exclusion of time, and that the district court did not err—
much less clearly err—in its ends of justice determination.
The panel wrote that the district court acted commendably in
doing its best to balance speedy trial rights and public safety
in the face of what is hopefully a once-in-a-lifetime
pandemic. Weighing the factors set forth in United States v.
Torres, 995 F.3d 695 (9th Cir. 2021), and Barker v. Wingo,
407 U.S. 514 (1972), the panel held that Walker’s Sixth
Amendment claim based on his pretrial detention also fails.
**
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. WALKER 3
The panel held that the district court did not err by
refusing to give Walker’s requested mens rea instruction—
that to convict, the jury had to find that he knew the handgun
he possessed had traveled in or affected interstate
commerce. The panel wrote that this court rejected this
precise argument in United States v. Stone, 706 F.3d 1145(9th Cir. 2013). The panel rejected Walker’s argument that
Stone is distinguishable because of the facts of this case. The
panel also rejected Walker’s arguments that Rehaif v. United
States, 139 S. Ct. 2191 (holding that the government must
prove both that the defendant knew he had the firearm and
that he knew he belonged to a category of persons barred
from possessing a firearm), effectively overruled, and is
clearly irreconcilable with, Stone. The panel wrote that
Rehaif explicitly disclaims imposing any mens rea
requirement on § 922(g)’s federal jurisdictional requirement,
and that the concern animating Rehaif—whether Congress
intended to impose felony criminal penalties upon those who
do not know that they belong to a category of persons barred
from possessing a firearm—does not apply here.
Because the panel rejected Walker’s challenges to his
conviction, and his challenge to the revocation of his
supervised release was based only upon the supposed infirm
conviction, the panel necessarily rejected his challenge to the
revocation of supervised release.
4 UNITED STATES V. WALKER
COUNSEL
Ann C. McClintock (argued), Assistant Federal Public
Defender; Heather E. Williams, Federal Public Defender;
Federal Public Defenders’ Office; Sacramento, California;
for Defendant-Appellant.
Aaron D. Pennekamp (argued), Assistant United States
Attorney; Camil A. Skipper, Assistant United States
Attorney, Appellate Chief; Phillip A. Talbert, United States
Attorney, Eastern District of California; Office of the United
States Attorney; Sacramento, California; for Plaintiff-
Appellee.
OPINION
BENNETT, Circuit Judge:
On February 20, 2020, Tommy Walker was indicted for
possessing a Jimenez Arms .380 semiautomatic handgun in
violation of 18 U.S.C. § 922(g), the felon in possession of a
firearm statute. He was not tried until August 30, 2021—
557 days after his indictment—largely because of the
COVID-19 pandemic. Over Walker’s objection, the district
court excluded much of this time from Walker’s Speedy
Trial Act calculation using the “ends of justice” provision of
the Act, 18 U.S.C. § 3161(h)(7)(A), and, as a result, denied
Walker’s Sixth Amendment and Speedy Trial Act motions
to dismiss his indictment.
At trial, the district court rejected Walker’s request for a
jury instruction requiring the jury to find that he knew that
the handgun he possessed had traveled in interstate
UNITED STATES V. WALKER 5
commerce. Jurors were instead instructed that they needed
to find beyond a reasonable doubt that: (1) Walker
knowingly possessed the Jimenez Arms handgun; (2) this
particular Jimenez Arms handgun had previously traveled in
interstate or foreign commerce; (3) Walker had at least one
prior conviction for an offense punishable by more than one
year in prison; and (4) Walker knew that he had at least one
such felony conviction.
Walker timely appeals both the speedy-trial and jury-
instruction issues. The district court properly excluded time
under the ends of justice provision of the Speedy Trial Act,
which gives effect to the Sixth Amendment right to a speedy
and public trial. In United States v. Olsen, 21 F.4th 1036,
1046 (9th Cir. 2022), we outlined non-exhaustive factors that
are relevant in deciding whether continuances caused by the
COVID-19 pandemic should be granted under the Speedy
Trial Act’s ends of justice provision. The Olsen factors
support the district court’s exclusion of time. Walker’s Sixth
Amendment claim also fails.
The district court also properly denied Walker’s
requested jury instruction. In United States v. Stone, we held
that the interstate commerce element of 18 U.S.C. § 922(g)
was “purely jurisdictional” and does not contain a mens rea
requirement. 706 F.3d 1145, 1146–47 (9th Cir. 2013). The
Supreme Court’s decision in Rehaif v. United States, 139 S.
Ct. 2191 (2019), does not overrule Stone, and Stone is not
“clearly irreconcilable” with Rehaif. See Miller v. Gammie,
335 F.3d 889, 893 (9th Cir. 2003) (en banc). Accordingly,
we affirm Walker’s conviction.1
1
Walker also appeals from the district court’s revocation of his
supervised release in a prior case. But his challenge is based only upon
6 UNITED STATES V. WALKER
I.
On November 22, 2019, Daisy Gutierrez recognized her
neighbor Tommy Walker standing in the street with a gun in
his hand, arguing with his partner or girlfriend. Walker was
holding a bottle of alcohol, screaming profanities, and
threatening to kill someone. Gutierrez called 911.
Sacramento Police Department officers arrived at Walker’s
residence, and when Walker answered the door, they
searched his home for the gun.
The officers found a loaded Jimenez Arms .380 caliber
handgun in a dresser drawer next to papers with Walker’s
name on them. Because Walker was on probation for prior
felony convictions—including a 2018 felon in possession of
a firearm conviction—the police arrested him for being a
felon in possession of a firearm.
Walker was charged with a single count of being a felon
in possession of a firearm in violation of § 922(g)(1). He
was arrested on February 10, 2020, and made an initial
appearance that same day. Walker was detained and
remained detained until his trial some eighteen months later.
On February 20, 2020, the grand jury returned an indictment
charging Walker with the § 922(g)(1) violation. At the
February 24, 2020 arraignment, Walker did not object to
Speedy Trial Act exclusions of time until April 20, 2020—
and then later, June 15, 2020—to give defense counsel
reasonable time to prepare, pursuant to 18 U.S.C.
§ 3161(h)(7)(B)(iv).
the supposed infirm conviction at issue here, which was one basis for the
revocation. Because we reject Walker’s challenges to his conviction, we
necessarily reject his challenge to the revocation of supervised release.
UNITED STATES V. WALKER 7
COVID-19 then hit. On March 12, 2020, Chief Judge
Mueller entered the first of many Eastern District General
Orders concerning the pandemic. By March 18, 2020, all
federal courthouses in the Eastern District were closed.
On April 17, 2020, Chief Judge Mueller entered General
Order No. 617, which stated that all Eastern District
courthouses would remain closed, and that in criminal cases,
judges could continue matters:
to a date after June 1, 2020, excluding time
under the Speedy Trial Act with reference to
. . . the Ninth Circuit Judicial Council’s Order
of April 16, 2020 continuing this court’s
judicial emergency for an additional one-year
period and suspending the time limits of 18
U.S.C. § 3161(c) until May 2, 2021, with
additional findings to support the exclusion
in the Judge’s discretion; if any criminal
matters are maintained on calendar, to the full
extent possible they shall be conducted by
telephone or videoconference . . . .
On May 13, 2020, Chief Judge Mueller entered General
Order No. 618, which superseded prior orders and declared
that all courthouses in the Eastern District would be closed
until further notice. General Order No. 618 also stated that
district judges could continue criminal cases because of the
pandemic and could exclude time under the Speedy Trial Act
with appropriate findings to support such exclusions.
Walker’s first hearing following his arraignment was
held on June 15, 2020. He demanded a speedy trial. The
United States orally moved to exclude certain time under the
Speedy Trial Act. The court denied the motion without
8 UNITED STATES V. WALKER
prejudice and required the government to file a written
motion. The United States filed such a motion on June 17,
2020, which the court granted at the July 7, 2020 hearing.
The court first excluded the time from the filing of the
motion (June 17) to the hearing (July 7) under 18 U.S.C.
§ 3161(h)(1)(D) (pretrial motions exclusion). The court set
the trial for September 29, 2020, and excluded the time
between July 7 and September 29, 2020 under the Speedy
Trial Act’s ends of justice provision—§ 3161(h)(7).
[T]he Court cannot see any path forward to
trial on the current date given that all of the
public health data is going the wrong
direction, including in many counties within
the Eastern District of California. . . . Again,
we will have to wait and see what’s occurring
with the public health data. The county
health officer is currently saying no -- no
gatherings, and under these circumstances
the Court can’t expect witnesses and
potential jurors to come to the courthouse. . . .
....
. . . With a jury trial you have many bodies in
a courtroom for many hours a day, and that is
a distinguishing aspect of a jury trial. There
are -- there would be complicated logistics to
allow proceeding in some way, but it’s the
number of hours in a day that people would
be congregating that currently makes even
considering going to a jury trial
impossible. . . . [I]t may be that we aren’t
ultimately bound by the county health
officer’s orders, but the county health
UNITED STATES V. WALKER 9
officer’s and the state health orders the Court
believes are based on sound public health
information that this Court cannot ignore.
On August 21, 2020, Walker filed two pretrial motions:
one for disclosure of a confidential informant and one for a
pretrial deposition. At a status conference held soon after,
the court and parties agreed that a September trial was
unlikely to occur given public health concerns, so the court
vacated the September 29, 2020 trial date. Over Walker’s
objection, the court set his motions for hearing on September
28, 2020 and excluded time through that date under
§ 3161(h)(7)(B)(iv) (giving counsel reasonable time to
prepare) and (h)(1)(D) (pretrial motions exclusion) of the
Act.
During the September 28, 2020 hearing, the court noted
that “our Facility Security Committee, is meeting again . . . .
Every two weeks we check the public health data for each
courthouse.” The court then directed the parties to meet and
confer regarding a trial date and to present a joint proposal
with a timeline to the court at an October 5, 2020 status
conference. The parties submitted their joint statement on
October 2, 2020.2 The court excluded the time between
September 28 and October 5, again relying on
2
In the joint statement, the government proposed a set of safety
protocols, conditionally consented to a bench trial, and created a timeline
for exploring the prospect of a jury trial. Walker agreed to some safety
recommendations, but he disagreed with the government suggestion that
“every individual in the courtroom [should] wear a mask,” and was
unwilling to waive his right to a jury trial. Walker also noted that while
he did “not object to the government’s proposed timeline,” he believed
“that the Court should also set a tentative trial date in this matter,” an
action the government felt was premature.
10 UNITED STATES V. WALKER
§ 3161(h)(7)(B)(iv) (giving counsel reasonable time to
prepare).
The court set a November 16, 2020 trial date at the
October 5, 2020 status conference (while also setting an
October 26 “Trial Confirmation Hearing”). The court took
judicial notice of public health data shared with the court’s
Facility Security Committee and excluded time between
October 5, 2020 and October 26, 2020 under
§ 3161(h)(7)(A) and (B).
So I’m excluding time through the new trial
date of November 16th, and I am basing that
on the persistence of the coronavirus
pandemic in the Sacramento division of our
court. . . . I’ll place on the docket in this case
as well the public health data that our court
considers and closely reviews every two
weeks. The last data reviewed by the Court’s
facility security committee on Friday shows
no downward trend in coronavirus cases.
The data is -- it comes from Johns Hopkins, a
reputable public health institution. It’s
compiled for this Court by the Administrative
Office of the U.S. Courts, and I’m taking
notice of that information. I’ve referenced it
in the past, but in the interest of full
transparency, I am not putting it on the
docket. This is the kind of data I have looked
at each time when I have had to reach a
decision in an individual case.
UNITED STATES V. WALKER 11
....
For the time being that COVID-19 persists,
there are some positive signs that if every
member of society does his and her part that
we may be able to suppress the virus as a
community as a whole, but we are not there
yet. And so the Court is applying a principle
of first do no harm, and that is applied to Mr.
Walker as the defendant, all the people
needed to carry out a trial, and especially --
not only but especially members of the jury
pool who would be coming from many
counties in Northern California many of
which have not moved into an orange or
yellow zone under the state’s measurements.
Those maps will be a part of what I put on the
docket here.
So I’m finding that the Court cannot safely
conduct a jury trial between now and the trial
confirmation at least and likely until the time
of the jury trial date that we’ve just set.
On October 26, 2020, the court continued the trial to
February 9, 2021. The court acknowledged that the Eastern
District’s general orders did “not preclude a judge from
convening a jury,” and instead directed judges to make “a
case-by-case” determination. The court then explained that
it was “making such a [case-by-case] decision,” and
although it was “concerning” that Walker was “detained
pending trial for a lengthy period of time,” an “ends of
justice” continuance was still appropriate based on, among
other things, “[t]he most recent data,” which showed that
“the coronavirus pandemic . . . ha[d] not been suppressed”
12 UNITED STATES V. WALKER
in the Sacramento division of the District, the area from
which the court would call jurors. The court excluded the
time through the new trial date—February 9, 2021—under
§ 3161(h)(7)(A) and (B).
On December 23, 2020, the parties stipulated to continue
the trial confirmation hearing to January 11, 2021. But then
a COVID outbreak occurred at the jail where Walker was
housed, and Walker’s counsel sought and obtained a
continuance of the trial confirmation hearing until January
25, 2021. The court clarified that while the time previously
excluded had been pursuant to § 3161(h)(7), the time from
January 11 through 25, 2021 was excluded pursuant to
§ 3161(h)(3)(A)—unavailability of defendant or an essential
witness.
On January 25, 2021, over Walker’s objection, the court
vacated the February 9, 2021 trial date and set a status
conference for May 10, 2021.
And I’m excluding time through that date
based on 3161(h) generally, and I’m finding
that it continues to be the case that the state
of the coronavirus pandemic, which has not
in any way been brought under control,
precludes the ability to convene a jury trial
with the attorneys and a jury pool summoned
from all of the Northern California counties
that feed into the Sacramento courthouse. So
I’m finding that this is a reason solely to
exclude time, and I’m not relying on any
impermissible condition. I’m assuming the
government is ready to go, the defense is
ready to go, and I regret that we can’t move
sooner at this point.
UNITED STATES V. WALKER 13
On March 26, 2021, Walker filed a second motion for
disclosure of a confidential informant and a motion to
dismiss for violation of his speedy trial rights. The motion
to dismiss was set for argument on May 10, 2021.
At the May 10, 2021 hearing on the motion to dismiss,3
the court set a new trial confirmation date of June 28, 2021,
and a new trial date of August 3, 2021. The court excluded
time through June 1, 2021, based on § 3161(h)(1)(D), the
pretrial motions exclusion, as well as § 3161(h)(7)(A).
I would, at this point, also exclude time
through June 1st based on the interest of
justice exclusion that [the government] is
referencing. And to clarify my thinking
about that, at that earliest date in the Court’s
mind if the courthouses may open to the
public. And at this point, although the Court
had considered an evidentiary hearing in
May, but it has been continued to June, the
Court has not been prepared to -- this Court
has not been prepared to convene a full jury
trial up to the June 1st date given the trends
and the infection rates in Sacramento and the
surrounding counties.
It may be that June 15th is the correct date
when the state has indicated it will lift the tier
system unless the public health data ends up
frustrating that goal. But at this point this
Court is comfortable, I believe the bench will
be considering a recommendation through
3
The court denied the motion on July 7, 2021.
14 UNITED STATES V. WALKER
the facility security committee. And it may
be by June 1st the Court is satisfied that the
pandemic no longer provides a basis for an
interest of justice exclusion.
So, through June 1st for now, but if the
government wants to move between June 1st
supplementing the record for information on
witnesses, it will consider whether or not an
interest of justice exclusion should continue
past June 1st up until the trial date of August
3rd.
On May 26, 2021, Chief Judge Mueller entered General
Order No. 631, which stated that since issuance of the
District’s prior orders, effective COVID-19 vaccines had
been developed and made available to the public. General
Order No. 631 also noted that, given the improvement in the
public health landscape, some judges had begun to schedule
jury trials and request that jury pools be summoned, with the
first jury trial scheduled to begin on June 2, 2021. The Order
also stated that effective June 14, 2021, all courthouses in
the Eastern District would be open to the public. But the
Order clarified that district judges overseeing criminal cases
could still continue matters, excluding time under the
Speedy Trial Act based on COVID-19, if accompanied by
findings to support exclusion.
On June 16, 2021, Walker and the United States
stipulated to exclude certain time and to move the trial date
from August 3, 2021 to August 24, 2021. The court
approved the stipulation, excluding the time between June
17, 2021 and August 24, 2021 under § 3161(h)(7)(B)(iv)
(giving counsel reasonable time to prepare).
UNITED STATES V. WALKER 15
The court denied the speedy trial motion to dismiss on
July 7, 2021. The court applied Olsen and found that while
two of the Olsen factors—the fact of detention and length of
detention—favored Walker, all other factors did not. As to
Walker’s speedy trial claim based on the Sixth Amendment,
the court listed the relevant factors, and found that “[o]n
balance, the relevant factors weigh against finding Mr.
Walker’s due process rights were violated.”
On August 2, 2021, the court continued the trial to
August 31, 2021 and excluded the time from August 2 to
August 31 under § 3161(h)(7)(B)(iv) (giving counsel
reasonable time to prepare) and (h)(3)(A) (unavailability of
a defendant or essential witness).4
Walker submitted a proposed jury instruction requiring
the government to prove that he “knew the firearm had been
transported in interstate commerce (or was willfully blind)
or knew the firearm was manufactured outside of
California.” At the appropriate time during the trial, Walker
argued that such an instruction was warranted, in part
“because the gun says California on it.” The trial judge
refused to give the instruction, and the jury was instructed as
to the elements of § 922(g) described above.
The jury found Walker guilty, and the court sentenced
him to a term of 46 months. The court also found that
Walker violated the terms and conditions of supervision and
ordered him to serve 24 months consecutively to the 46
months imposed for the new conviction. Walker timely
appealed.
4
The docket notes that defense witnesses were unavailable.
16 UNITED STATES V. WALKER
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo a district court’s decision to deny a motion
to dismiss an indictment based on its interpretation of the
Speedy Trial Act. See United States v. Gorman, 314 F.3d
1105, 1110 (9th Cir. 2002). But we review the district
court’s findings of fact and its “ends of justice”
determinations for clear error. Olsen, 21 F.4th at 1040. We
review de novo whether a defendant’s Sixth Amendment
rights were violated. United States v. Torres, 995 F.3d 695,
701 (9th Cir. 2021). We also review de novo whether jury
instructions accurately defined the elements of the statutory
offense. United States v. Perdomo-Espana, 522 F.3d 983,
986 (9th Cir. 2008).
III.
A. The Exclusions Under the Speedy Trial Act Were
Proper and Walker’s Sixth Amendment Rights Were
Not Violated
We first address whether Walker’s Speedy Trial Act and
constitutional rights were violated.
1. Walker’s Speedy Trial Act claim
The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy
and public trial.” U.S. Const. amend. VI. To give effect to
this right, Congress enacted the Speedy Trial Act, which sets
time limits between an accused’s arraignment or indictment
and when that person’s criminal trial 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) (describing the
Speedy Trial Act as the Sixth Amendment’s
“implementation”). The Speedy Trial Act requires that a
UNITED STATES V. WALKER 17
criminal trial begin within seventy days from either the date
on which an indictment was filed, or the date on which a
defendant makes an initial appearance, whichever is later.
18 U.S.C. § 3161(c)(1). But the Act contains “a long and
detailed 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 § 3161(h).
Relevant here is the ends of justice provision, allowing for
the exclusion of time if a district court finds “that the ends of
justice served by taking such action [in continuing a trial and
excluding time] outweigh the best interest of the public and
the defendant in a speedy trial.” § 3161(h)(7)(A); see also
Olsen, 21 F.4th at 1041 (explaining the ends of justice
provision).
As we described in Olsen, “[i]n 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,” each
of which can be sufficient to warrant an exclusion of time if
present. 21 F.4th at 1041 (quoting § 3161(h)(7)(B)). The
first enumerated factor is “[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.” § 3161(h)(7)(B)(i).
Our court has already addressed the application of “the
ends of justice” exclusion provision to criminal trials
delayed by the pandemic. In Olsen, we held that “[n]othing
in the Speedy Trial Act limits district courts to granting ends
of justice continuances only when holding jury trials is
impossible.” 21 F.4th at 1045 (emphasis added).
The Speedy Trial Act and our case law are
silent as to what non-statutory factors district
18 UNITED STATES V. WALKER
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.
Id. at 1046. But the Olsen factors are not exhaustive when
applied to pandemic-related continuances, and the ultimate
touchstone is still the statute—18 U.S.C. § 3161(h)(7). See
id. at 1046–47.
Applying the relevant factors, 557 days elapsed between
Walker’s indictment and the first day of trial. In total, the
district court excluded 553 of those days. However, Walker
claims there were “at least 228 days” of non-excludable
time.5 The parties agree that much of the relevant time is
5
In his Reply, Walker claims he opposed exclusion of “at least 265
days.” But this number fails to take into account the parties’ stipulation
to exclude time between June 17, 2021 and August 24, 2021.
UNITED STATES V. WALKER 19
excludable for reasons unrelated to the ends of justice.6 And
while Walker contends there were improper exclusions
beyond the “ends of justice” exclusions, such exclusions are
immaterial if the district court did not err in its pandemic-
related ends of justice exclusions. Several Olsen factors
arguably favor Walker here. First, he was detained for a
substantial period pending trial—approximately eighteen
months. And second, Walker invoked his speedy trial rights
relatively early.7
The fifth factor perhaps favors Walker, though our
decision here to affirm would be the same even if this factor
indisputably favored Walker. Though the § 922(g) offense
of being a felon in possession of a firearm is a serious felony,
it is not considered a “violent” offense.8 See, e.g., United
States v. Sahakian, 965 F.2d 740, 742 (9th Cir. 1992)
(holding that a felon-in-possession conviction is not a crime
of violence under the Career Offender guideline).
But the Olsen factors supporting that the exclusions were
in the interests of justice are far more substantial. Walker’s
prior record includes two felon-in-possession convictions, as
6
The government argues that Walker may not challenge some of the
exclusions he now appears to challenge because, according to the
government, Walker consented to certain continuances. But Walker’s
briefs make clear that his challenge depends on the district court’s
COVID-related ends of justice exclusions. Because we uphold all those
ends of justice exclusions, it is unnecessary for us to determine whether
Walker consented to certain continuances.
7
The district court found this factor did not weigh in Walker’s favor:
“Mr. Walker did not invoke his speedy trial rights since the inception of
his case; rather he stipulated to exclude time up until June 15, 2020.”
8
The district court found that as to this factor, Walker “faces serious
even if non-violent charges.”
20 UNITED STATES V. WALKER
well as convictions for second-degree robbery, hit and run,
and theft of a vehicle.9 And while it is unclear whether
Walker “belongs to a population that is particularly
susceptible to complications if infected with the virus,”
Olsen, 21 F.4th at 1046, the extent of Walker’s argument on
this factor is that it “may favor” him “if viewed
categorically.” Accordingly, as the district court found,
“Walker does not claim to be part of a population that is
particularly at risk for complications related to COVID-
19.”10 Most critically, the district court did not clearly err in
finding that it could not have safely conducted a trial during
the challenged period.
The period most relevant to this appeal occurred between
June 15, 2020, Walker’s first post-arraignment hearing, and
March 26, 2021, when Walker filed pretrial motions that
paused the speedy trial clock.11 Putting aside the
9
The district court found: “There is reason to suspect Mr. Walker might
reoffend if the charges are dropped given his criminal history and
recidivism with respect to felon in possession charges. See Compl. ¶ 11,
ECF No. 1 (describing convictions for second degree robbery, hit and
run, theft of vehicle, and two prior felon in possession of firearm
violations).”
10
In his Reply, Walker argues that “[t]his fourth factor may be
considered neutral, as Mr. Walker was not more susceptible to COVID-
19 [than] others, save for his prolonged exposure and lack of mitigation
ability by being confined in the Sacramento County jail. (Which
ultimately resulted in him catching the virus.)” We view this as a
concession that the fourth factor does not favor Walker, and there is no
evidence in the record that Walker belongs to a population that is
particularly susceptible to complications if infected with the virus.
11
Not all the time between June 15, 2020 and March 26, 2021 is
contested. Walker does not challenge the Speedy Trial Act exclusions
from August 21, 2020 to September 28, 2020 (pretrial motions) and from
January 11, 2021 to January 25, 2021 (unavailability of defendant).
UNITED STATES V. WALKER 21
unchallenged exclusions, the district court excluded this
time under the ends of justice provision of § 3161(h)(7)
because of the pandemic. The court found it “did not have
the ability to safely conduct a trial at the time it granted
continuances and excluded time.” The court did not clearly
err in making this finding. The court also found, citing
Olsen, that “the ends of justice served by granting [the]
continuance[s] outweigh the best interest of the public and
the defendant in convening a speedy trial.” It did not err in
making this determination.
During the challenged period, all courthouses in the
Eastern District of California were closed to the public. In-
person jury trials did not resume until June 2021. And the
district court made regular, case-specific factual findings
about its own ability to hold a jury trial safely. Indeed, the
court ordered counsel to meet and confer in September 2020,
before there were any vaccines, to try to come up with a trial
date and a COVID-19-safe plan. The district court’s
willingness to hold jury trials changed when the courthouse
was reopened to the public (after the availability of
vaccines), and courts around the county began to “open up”
once again. As courts around the country have noted, and as
we noted in Olsen, the pandemic “presented courts with
unprecedented challenges.” 21 F.4th at 1040. Such
challenges required balancing the right to a speedy and
public trial with the “public health and safety issues posed
by COVID-19” to everyone from prospective jurors to
defendants, attorneys, and court personnel. Id. at 1049.
The district court did not clearly err in its determinations
based on COVID-19. The court tried, admirably in our view,
to tie its exclusions to public health data and
recommendations. It responded to an evolving and
unpredictable situation by considering updated data every
22 UNITED STATES V. WALKER
two weeks. It ordered the parties to submit a joint proposal
with safety protocols and a timeline for trial. The district
court did not act lightly and did not dismiss out of hand
Walker’s speedy trial concerns. The trial judge was, as she
said, trying to follow the “principle of first do no harm.”
Walker was entitled to a speedy trial. But in 2020,
COVID-19 was the third leading cause of death in the United
States.12 And it is estimated that over one million people in
the United States and 6.8 million people worldwide have
died from COVID-19.13 After vaccines were released to the
public in 2021, deaths in the United States decreased
significantly.14 The district court acted commendably in
doing its best to balance speedy trial rights and public safety
in the face of what is hopefully a once-in-a-lifetime
pandemic.15 The district court did not err—much less clearly
err—in its ends of justice determination, and thus we affirm
the denial of the Speedy Trial Act motion to dismiss.
12
See Sherry L. Murphy et al., Mortality in the United States, 2020,
NCHS Data Brief No. 427, Nat’l Ctr. for Health Stats. 1 (Dec. 2021),
https://www.cdc.gov/nchs/data/databriefs/db427.pdf.
13
WHO Coronavirus (COVID-19) Dashboard, https://covid19.who.int
(last visited Feb. 20, 2023).
14
See WHO Coronavirus (COVID-19) Dashboard: United States of
America, https://covid19.who.int/region/amro/country/us (last visited
Feb. 20, 2023).
15
Walker’s argument that the emergence of vaccines against COVID-19
should not matter because the district court did not require jurors to be
vaccinated is unpersuasive. The determination that safety required a
significant pause in trials is not undercut by the district court’s decision
not to categorically exclude from jury service unvaccinated individuals.
UNITED STATES V. WALKER 23
2. Walker’s Sixth Amendment claim
Walker also raises constitutional claims based on his
pretrial detention. The Sixth Amendment’s speedy trial
provision is “an important safeguard to prevent undue and
oppressive incarceration prior to trial.” United States v.
Ewell, 383 U.S. 116, 120 (1966). And as this court has stated
in the context of COVID-19 delays, “at some point, pretrial
detention can become excessively prolonged, and therefore
punitive, resulting in a due process violation.” Torres, 995
F.3d at 708 (internal quotation marks omitted) (quoting
United States v. Salerno, 481 U.S. 739, 747 n.4 (1987)).
“The point at which detention constitutes a due process
violation requires a case-by-case analysis.” Id. (citation
omitted). And when “evaluating whether a due process
violation has occurred,” courts must “weigh the following
factors: (1) the length of the defendant’s pretrial detention;
(2) the prosecution’s contribution to the delay; and (3) the
evidence supporting detention under the Bail Reform Act.”
Id. The Bail Reform Act requires courts to consider: (1) “the
nature and circumstances of the offense charged”; (2) “the
weight of the evidence against the person”; (3) “the history
and characteristics of the person”; and (4) “the nature and
seriousness of the danger to any person or the community
that would be posed by the person’s release.” 18 U.S.C.
§ 3142(g). Under the Sixth Amendment, courts also conduct
“ad hoc” balancing of factors including the “[l]ength of
delay, the reason for the delay, the defendant’s assertion of
his right, and prejudice to the defendant.” Barker v. Wingo,
407 U.S. 514, 530 (1972); see also United States v. Lonich,
23 F.4th 881, 893 (9th Cir. 2022) (postdating the Speedy
Trial Act).
Walker was detained for about eighteen months before
being tried, a significant period. See United States v. Myers,
24 UNITED STATES V. WALKER
930 F.3d 1113, 1119 (9th Cir. 2019) (noting that, in general,
delays of one year are presumptively prejudicial). But we
have found that longer periods do not necessarily weigh
heavily in a defendant’s favor. See United States v. King,
483 F.3d 969, 976 (9th Cir. 2007). All other relevant factors
weigh against Walker. The pandemic, not the prosecution,
caused the delay.16 And the Bail Reform Act weighing
mirrors the Olsen factors. Walker had five prior felony
convictions—including prior convictions for being a felon in
possession of a firearm—and while an offense under
§ 922(g)(1) is considered nonviolent, see Sahakian, 965 F.2d
at 742, it is a serious felony. Moreover, the weight of
evidence against Walker on the gun charge was
overwhelming: His neighbor called the police because she
saw him waving a gun in public and threatening to kill
someone. When officers searched his home, they found the
gun next to paperwork bearing Walker’s name. These and
other facts found by the district court also support the
conclusion that the community faced danger or other risks if
Walker had been released.17
16
The district court found that “the prosecution did nothing to delay this
case.”
17
The original detention order found that the reasons for the court
detaining Walker included: the strong weight of the evidence against
Walker; Walker’s prior criminal history; Walker’s participation in
criminal activity while on probation, parole, or supervision; Walker’s
history of violence or use of weapons; Walker’s prior attempt(s) to evade
law enforcement; and Walker’s prior violations of probation, parole, or
supervised release. Walker did not appeal the Magistrate Judge’s
detention order to the district court. In rejecting Walker’s constitutional
claims, the district court found that Walker “presents no evidence from
which the court can conclude he does not pose a danger to any other
person or the community. The evidence supports Mr. Walker’s detention
UNITED STATES V. WALKER 25
Walker’s claim also fails under the Barker v. Wingo
balancing factors. In Barker, the Court held that a delay
between arrest and trial of “well over five years” caused in
“good part” by “the Commonwealth’s failure” was
outweighed by the fact that prejudice was minimal and the
fact that Barker “did not want a speedy trial.” 407 U.S. at533–34. Here, although Walker was insistent about his right
to a speedy trial and the time between his arrest and
conviction was substantial, these factors are outweighed by
the reason for the delay and lack of legal prejudice to
Walker. As in Barker, “there is no claim that any of
[Walker’s] witnesses died or otherwise became unavailable
owing to the delay.” Id. Similarly, Walker raises no “lapses
of memory” which might have been “significant to the
outcome” of his case. Id. at 534.
Reviewing de novo, we affirm the district court’s
decision not to dismiss the indictment, as we find that the
delay did not violate Walker’s constitutional rights.
B. The District Court Correctly Refused the Requested
Mens Rea Jury Instruction
Walker contends the district court erred by refusing to
give his requested mens rea jury instruction—that to convict,
the jury had to find that he knew the handgun he possessed
had traveled in or affected interstate commerce.
The federal felon-in-possession statute makes it
unlawful for any person “who has been convicted in any
court of[] a crime punishable by imprisonment for a term
exceeding one year” to “possess in or affecting commerce,
under the Bail Reform Act to prevent danger to the community and
assure he will appear in court.”
26 UNITED STATES V. WALKER
any firearm or ammunition.” 18 U.S.C. § 922(g)(1). 18
U.S.C. § 924 provides that any person who “knowingly
violates” § 922(g) “shall be fined under this title, imprisoned
for not more than 15 years, or both.” § 924(a)(8). Walker
claims that the statutory requirement of a knowing violation
requires proof that he knew his gun had traveled in or
affected interstate commerce.
In United States v. Stone, 706 F.3d 1145, 1146 (9th Cir.
2013), we rejected this precise argument and held that there
is no mens rea for the affecting commerce element of the
felon-in-possession statute. After noting that “the context in
which §§ 922(g)(1) and 924(a)(2) were enacted does not
suggest Congress intended to extend the mens rea
requirement to the interstate commerce element,” 18 we
concluded that “the interstate commerce element [of those
statutes] is purely jurisdictional” and intended to ensure the
constitutionality of these federal criminal laws. Id. at 1147.
Walker first argues that Stone is distinguishable because
of the “specific and unusual facts” of this case: the gun
Walker was convicted of possessing was both manufactured
in and possessed by him in California. This argument fails
because Stone admits of no such limitation—its holding is
clear and categorical: the “knowingly” requirement
applicable to § 922(g) does not apply to the jurisdictional
interstate commerce element.19
18
Though Stone was convicted for being a felon in possession of
ammunition in violation of § 922(g)(1), 706 F.3d at 1145, Walker’s
conviction for possession of a firearm occurred pursuant to the same
subsection.
19
Walker also relies on Flores-Figueroa v. United States, 556 U.S. 646(2009). But as the government points out, the defendant in Stone also
relied on Flores-Figueroa, which had been decided four years before
UNITED STATES V. WALKER 27
But Walker’s primary argument is that “the textual
analysis that forms the holding in Rehaif [v. United States,
139 S. Ct. 2191 (2019),] effectively overrules [the]
conclusion in Stone.” In Rehaif, the Supreme Court held that
in a prosecution under §§ 922(g) and 924(a)(2), the
government must prove both that the defendant knew he
possessed a firearm and that he knew he belonged to a
category of persons barred from possessing a firearm. See
139 S. Ct. at 2195. But Rehaif explicitly disclaims imposing
any mens rea requirement on the federal jurisdictional
requirement. “No one here claims that the word ‘knowingly’
modifies the statute’s jurisdictional element. Jurisdictional
elements do not describe the ‘evil Congress seeks to
prevent,’ but instead simply ensure that the Federal
Government has the constitutional authority to regulate the
defendant’s conduct (normally, as here, through its
Commerce Clause power).” Id. at 2196 (quoting Luna
Torres v. Lynch, 136 S. Ct. 1619, 1630–31 (2016)).20 Rehaif,
thus, did not overrule Stone.
Nor is Stone’s holding “clearly irreconcilable” with
Rehaif. Miller, 335 F.3d at 893 (holding that prior circuit
authority binds unless its reasoning or theory “is clearly
irreconcilable with the reasoning or theory of intervening
higher authority”). The concern animating Rehaif—whether
Congress intended to impose felony criminal penalties upon
Stone, and the court in Stone rejected the same argument Walker makes
here. See Stone, 706 F.3d at 1146–47.
20
In his dissent, Justice Alito, joined by Justice Thomas, wrote that while
one interpretation of the statute could impose the requirement that a
defendant “knew that what he did was ‘in or affecting commerce[,]’”
both “the parties (and the majority) disclaim this reading.” 139 S. Ct. at
2205 (Alito, J., dissenting).
28 UNITED STATES V. WALKER
those who do not know that they belong to a category of
persons barred from possessing a firearm—simply does not
apply here. The jury was instructed that to convict Walker,
it had to be convinced beyond a reasonable doubt that when
Walker possessed the semiautomatic handgun, he “knew that
he had been convicted of a crime punishable by
imprisonment for a term exceeding one year.”
We also note that while other defendants have advanced
the argument Walker advances, no court of appeals has ever
agreed with that argument. Cases predating Rehaif have
clearly articulated that there is no “knowledge” aspect to
§ 922(g)’s jurisdictional element. See, e.g., United States v.
Garcia-Hernandez, 803 F.3d 994, 997 (8th Cir. 2015) (“The
mens rea requirement in § 924(a)(2) does not apply to the
interstate-commerce element of § 922(g)(1).”); United
States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (“A
defendant’s knowledge or ignorance of the interstate nexus
is irrelevant.”). And cases following Rehaif have not
changed course. See, e.g., United States v. Trevino, 989 F.3d
402, 406 (5th Cir. 2021) (listing the elements of a § 922(g)
conviction, noting their compliance with Rehaif, and not
including knowledge that the firearm traveled in interstate
commerce); United States v. Raymore, 965 F.3d 475, 484
(6th Cir. 2020), cert. denied, 141 S. Ct. 2814 (2021)(“[P]roof that the firearm traveled through interstate
commerce can satisfy the statute’s nexus requirement.”).
***
For these reasons, we affirm Walker’s conviction and the
revocation of his supervised release.