United States v. Jeffrey Olsen

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50329
Plaintiff-Appellant,
D.C. Nos.
v. 8:17-cr-00076-CJC-1
8:17-cr-00076-CJC
JEFFREY OLSEN,
Defendant-Appellee. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted March 18, 2021
San Francisco, California
Filed April 23, 2021
Amended January 6, 2022
Before: Mary H. Murguia and Morgan Christen, Circuit
Judges, and Barbara M. G. Lynn, * District Judge.
*
The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
2 UNITED STATES V. OLSEN
Order;
Per Curiam Opinion;
Concurrence in Order by Judges Murguia and Christen;
Concurrence in Order by Judge Bumatay;
Dissent from Order by Judge Collins
SUMMARY **
Criminal Law
The panel (1) amended its opinion filed April 23, 2021,
reversing the district court’s judgment dismissing with
prejudice an indictment charging Jeffrey Olsen on 34 counts
related to the unlawful distribution of opioids; (2) denied a
petition for panel rehearing; and (3) denied on behalf of the
court a petition for rehearing en banc.
Olsen was indicted in July 2017. He has since remained
on pretrial release and has obtained eight continuances of his
trial date, most recently scheduled for October 13, 2020.
After the Central District of California suspended jury trials
due to the COVID-19 pandemic in March 2020, Olsen
invoked, for the first time, his right to a speedy trial. Because
jury trials were suspended, the government requested a
continuance of Olsen’s trial under 18 U.S.C.
§ 3161(h)(7)(A)—the Speedy Trial Act’s “ends of justice”
provision. The district court denied the request and,
ultimately, dismissed the charges against Olsen with
prejudice, concluding that continuances under the ends of
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. OLSEN 3
justice provision are appropriate only if holding a criminal
jury trial would be impossible.
In the amended opinion, the panel wrote that nothing in
the Speedy Trial Act limits district courts to granting ends of
justice continuances only when holding jury trials is
impossible, and that the district court clearly erred by
reading the word “impossible” from 18 U.S.C.
§ 3161(h)(7)(B)(i) in isolation, which is enough to reverse.
The panel wrote that by solely focusing on the word
“impossible,” the district court also overlooked the rest of
§ 3161(h)(7)(B)(i), which requires courts to ask whether the
district court’s failure to apply an ends of justice continuance
would result in a miscarriage of justice. The panel
concluded that the district court’s failure to grant the
government’s motion for a continuance and subsequent
dismissal of the indictment, under the unique facts of Olsen’s
case and the Central District’s suspension of jury trials,
resulted in a miscarriage of justice. The panel noted that
Olsen, who was granted bond, had obtained eight trial
continuances, including one over the government’s
objection, effectively delaying his trial well over three years;
that after the Central District suspended jury trials, Olsen
insisted on sticking to his scheduled trial date; and that by
that time, the prosecution had been ready for trial for months
and was wholly blameless for the Central District’s
suspension of jury trials.
The panel wrote that the district court also failed to
consider other, non-statutory factors. The panel found
relevant in the context of the COVID-19 pandemic the
following non-exhaustive factors: (1) whether a defendant
is detained pending trial; (2) how long a defendant has been
detained; (3) whether a defendant has invoked speedy trial
4 UNITED STATES V. OLSEN
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.
Though not necessary to its disposition of this case, the
panel found it important to highlight the district court’s
additional error in dismissing the indictment with prejudice.
The panel wrote that the district court, which primarily based
its decision on the perceived need to deter the Central
District from continuing its jury trial suspension, committed
legal error in failing to consider key factors relevant to
Olsen’s case: the absence of prosecutorial culpability and
the multiple continuances requested by Olsen. The panel
wrote that the district court also committed legal error in
evaluating the impact of reprosecution on the administration
of the Speedy Trial Act and on the administration of justice.
The panel remanded with instructions to reinstate the
indictment, grant an appropriate “ends of justice”
continuance under § 3161(h)(7)(A), and set the case for trial.
Concurring in the denial of rehearing en banc, Chief
Judge Murguia and Judge Christen wrote that they stand
behind the opinion because the district court erred by
denying the government’s motion for an ends-of-justice
continuance under the Speedy Trial Act based on a physical
impossibility standard, that error required reversal, and it
was error to dismiss the indictment with prejudice. The
judges wrote that nothing in the opinion minimizes the
UNITED STATES V. OLSEN 5
importance of the constitutionally guaranteed right to a
speedy trial, and this court will surely be presented with
future cases in which the balancing required by the Speedy
Trial Act will present different results.
Concurring in the denial of rehearing en banc, Judge
Bumatay wrote that since Olsen wasn’t detained pretrial and
the delay here was not long enough to justify dismissal
according to our precedent, no speedy trial violation
occurred. He wrote that this case would be much different
if Olsen had been incarcerated during the COVID-19
pandemic and did not receive the trial he was entitled to
under the Constitution.
Judge Collins, joined by Judge Forrest, dissented from
the denial of rehearing en banc. He noted that the panel
upheld the Central District’s lengthy suspension of jury trials
by invoking overall public health concerns without ever
considering whether there was any way in which criminal
jury trials could have been conducted during the pandemic—
as the California state courts managed to do. He wrote that
even weighty claims of danger to public health must be
measured against the demands of the law, and here the
relevant provisions of the Speedy Trial Act are fairly
stringent. He wrote that under any proper understanding of
the Speedy Trial Act, the district court correctly concluded
that the Government had failed to show that a further
continuance of Olsen’s trial was consistent with the Act’s
standards; and that because Olsen’s trial did not take place
within the time specified in the Act, the dismissal of the
indictment was mandatory, although the district court had
discretion to decide whether that dismissal should be with or
without prejudice. Judge Collins agreed with the panel’s
alternative ruling that the district court abused its discretion
in dismissing the indictment with prejudice.
6 UNITED STATES V. OLSEN
COUNSEL
Charles E. Fowler Jr. (argued) and Bram M. Alden, Assistant
United States Attorneys; Scott M. Garringer, Chief,
Criminal Division; Tracy L. Wilkison, Acting United States
Attorney; United States Attorney’s Office, Los Angeles,
California; for Plaintiff-Appellant.
James H. Locklin (argued), Deputy Federal Public Defender;
Cuauhtemoc Ortega, Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; for
Defendant-Appellee.
Katie Hurrelbrink and Vincent J. Brunkow, Federal
Defenders of San Diego, Inc., San Diego, California, for
Amicus Curiae Federal Defenders of San Diego, Inc.
UNITED STATES V. OLSEN 7
ORDER
The Opinion filed April 23, 2021, and published at 995
F.3d 683, is hereby amended.
The panel has voted to deny the petition for panel
rehearing and petition for rehearing en banc. The full court
was advised of the petition for rehearing en banc. A judge
requested a vote on whether to rehear the matter en banc.
The matter failed to receive a majority of votes of the
nonrecused active judges in favor of en banc consideration.
Fed. R. App. P. 35.
The petition for panel rehearing and the petition for
rehearing en banc are DENIED (Doc. 48). A concurrence
in the denial by the panel and a separate concurrence by
Judge Bumatay are filed concurrently with this order, along
with a dissent from the denial by Judge Collins.
Appellee’s unopposed motion to take judicial notice is
GRANTED (Doc. 49).
No further petitions for rehearing or rehearing en banc
will be entertained in this case.
OPINION
PER CURIAM:
The COVID-19 pandemic has presented courts with
unprecedented challenges. Among these challenges is
determining when and how to conduct jury trials without
endangering public health and safety and without
undermining the constitutional right to a jury trial. The
8 UNITED STATES V. OLSEN
United States appeals from the district court’s dismissal with
prejudice of an indictment against Defendant Jeffrey Olsen.
Olsen was indicted in July 2017 on thirty-four counts related
to the unlawful distribution of opioids. He has since
remained on pretrial release and has obtained eight
continuances of his trial date, most recently scheduled for
October 13, 2020. After the Central District of California
suspended jury trials due to the COVID-19 pandemic in
March 2020, Olsen invoked, for the first time, his right to a
speedy trial. Because jury trials were suspended, the
government requested a continuance of Olsen’s trial under
18 U.S.C. § 3161(h)(7)(A)—the Speedy Trial Act’s “ends of
justice” provision. The district court denied the request and,
ultimately, dismissed the charges against Olsen with
prejudice, concluding that continuances under the ends of
justice provision are appropriate only if holding a criminal
jury trial would be impossible. Because the district court
erred in its reading of 18 U.S.C. § 3161(h)(7)(A), we reverse
with instructions to reinstate Olsen’s indictment, grant an
appropriate ends of justice continuance, and set this case for
trial.
I.
A.
We have jurisdiction under 18 U.S.C. § 3731. We
review de novo a district court’s decision to dismiss on
Speedy Trial Act grounds and its findings of fact for clear
error. United States v. Henry, 984 F.3d 1343, 1349–50 (9th
Cir. 2021) (citing United States v. King, 483 F.3d 969, 972
n.3 (9th Cir. 2007)). A district court’s ends of justice
determination will be reversed only if it is clearly erroneous.
United States v. Murillo, 288 F.3d 1126, 1133 (9th Cir.
2002).
UNITED STATES V. OLSEN 9
B.
The Sixth Amendment guarantees all criminal
defendants “the right to a speedy and public trial.” U.S.
Const. amend. VI. Despite this guarantee, however, the
Sixth Amendment does not prescribe any specified length of
time within which a criminal trial must commence. See id.To give effect to this Sixth Amendment right, Congress
enacted the Speedy Trial Act, which sets specified time
limits after arraignment or indictment within which criminal
trials must commence. Pub. L. No. 93-619, 88 Stat. 2076(1975); see Furlow v. United States, 644 F.2d 764, 768–69
(9th Cir. 1981) (per curiam) (describing the Speedy Trial Act
as the Sixth Amendment’s “implementation”).
As relevant here, the Speedy Trial Act requires that a
criminal trial begin within seventy days from the date on
which the indictment was filed, or the date on which the
defendant makes an initial appearance, whichever occurs
later. 18 U.S.C. § 3161(c)(1). Recognizing the need for
flexibility depending on the circumstances of each case,
however, the Speedy Trial Act “includes a long and detailed
list of periods of delay that are excluded in computing the
time within which trial must start.” Zedner v. United States,
547 U.S. 489, 497 (2006); see 18 U.S.C. § 3161(h). A court
may exclude periods of delay resulting from competency
examinations, interlocutory appeals, pretrial motions, the
unavailability of essential witnesses, and delays to which the
defendant agrees. 18 U.S.C. § 3161(h). The Speedy Trial
Act also includes an ends of justice provision, allowing for
the exclusion of time where a district court finds “that the
ends of justice served by taking such action outweigh the
best interest of the public and the defendant in a speedy
trial.” Id. § 3161(h)(7)(A). In determining whether the ends
of justice outweigh the best interest of the public and the
10 UNITED STATES V. OLSEN
defendant in a speedy trial, the district court must evaluate,
“among others,” several enumerated factors. Id.
§ 3161(h)(7)(B)(i)–(iv). Most relevant to our analysis is the
first enumerated factor: “[w]hether the failure to grant such
a continuance in the proceeding would be likely to make a
continuation of such proceeding impossible, or result in a
miscarriage of justice.” Id. § 3161(h)(7)(B)(i).
II.
A.
The global COVID-19 pandemic has proven to be
extraordinarily serious and deadly. 1 In response, many state
and local governments entered declarations curtailing
operations of businesses and governmental entities that
interact with the public. Beginning on March 13, 2020, the
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
1
As of April 2021, there have been over 141 million confirmed
COVID-19 cases and over 3 million COVID-19 related deaths globally.
Over 31 million of those cases are from the United States, with well over
half a million deaths. And as of April 2021, California alone has
confirmed over 3.6 million cases, with nearly 60,000 deaths.
2
Among these was the Central District of California’s declaration
of a judicial emergency pursuant to 18 U.S.C. § 3174, which this
Circuit’s Judicial Council subsequently approved. See In re Approval of
Jud. Emergency Declared in the Cent. Dist. of Cal., 955 F.3d 1140, 1141
(9th Cir. 2020) (“Judicial Emergency”). The emergency period runs
until April 13, 2021 and extends the Speedy Trial Act’s 70-day time limit
for commencing trial to 180 days for defendants indicted between March
13, 2020 and April 13, 2021 and not “detained solely because they are
awaiting trial.” Id. at 1141–42; 18 U.S.C. § 3174(b). Because Olsen was
UNITED STATES V. OLSEN 11
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
B.
1.
Jeffrey Olsen, a California-licensed physician, is
accused of illegally prescribing opioids. Following an
indicted before the suspension, the 180-day period does not apply, and
he is subject to the ordinary Speedy Trial Act time limit.
3
The General Orders are accessible at
https://www.cacd.uscourts.gov/news/coronavirus-covid-19-guidance.
4
The Central District of California includes the Western, Eastern
and Southern divisions. At all relevant times, Olsen’s case was based
out of the Southern Division, located in Santa Ana, California.
12 UNITED STATES V. OLSEN
investigation that began in January 2011, Olsen was indicted
in July 2017 in the Central District of California on thirty-
four counts related to illegal distribution of oxycodone,
amphetamine salts, alprazolam, and hydrocodone, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), (b)(1)(E), and
(b)(2), and furnishing false and fraudulent material
information to the U.S. Drug Enforcement Administration in
violation of 21 U.S.C. § 843(a)(4)(A). According to the
government, Olsen was aware that at least two of his patients
had died of prescription drug overdoses, while he continued
prescribing dangerous combinations and unnecessary
amounts of opioids to his patients.
Olsen made his initial appearance and was arraigned on
July 11, 2017. Because the Speedy Trial Act required that
Olsen’s trial commence on or before September 19, 2017,
the district court set trial for September 5, 2017. Olsen
pleaded not guilty, and a magistrate judge set a $20,000
unsecured appearance bond; Olsen posted the bond and has
since remained out of custody.
2.
Since Olsen’s indictment and release on bond in 2017,
there have been eight continuances of his trial date, which
has postponed trial for over three years. The first five
continuances were reached by stipulation with the
government. Before the fifth stipulation, Olsen fired his
retained counsel who had represented him since his initial
appearance, and the district court appointed the Federal
Public Defender as replacement counsel. These five
stipulations continued Olsen’s trial from September 5, 2017
to November 5, 2019. On August 20, 2019, Olsen sought a
sixth continuance, which the district court granted over the
government’s objection, and continued Olsen’s trial to May
5, 2020. After the court granted this continuance, the
UNITED STATES V. OLSEN 13
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 if without a continuance,
holding the trial would be impossible” and “actual
14 UNITED STATES V. OLSEN
impossibility is key for application of [the ends of justice]
exception.” The court concluded that the Constitution
“requires that a trial only be continued over a defendant’s
objection if holding the trial is impossible” and that “[i]f it is
possible for the court to conduct a jury trial, the court is
constitutionally obligated to do so. There are no ifs or buts
about it.” Because, the district court reasoned, “it is simply
not a physical or logistical impossibility to conduct a jury
trial,” a continuance was forbidden. The district court
therefore requested the Chief Judge of the Central District to
summon jurors for Olsen’s trial. The Chief Judge promptly
rejected this request and explained that the majority of the
Central District judges had approved a general order to
suspend jury trials as “necessary to protect the health and
safety of prospective jurors, defendants, attorneys, and court
personnel due to the [COVID-19] pandemic.”
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
UNITED STATES V. OLSEN 15
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
16 UNITED STATES V. OLSEN
sanction with enough teeth to create any hope of deterring
additional delay in the resumption of jury trials and avoiding
further dismissals of indictments,” that dismissal without
prejudice would let the government reindict “and proceed as
if no constitutional violation ever occurred,” and that this
“meaningless result” would have “no adverse
consequences” for the Central District.
Because the seventy-day Speedy Trial Act clock had not
yet fully run, and no Speedy Trial Act violation had yet
occurred, the court announced that the dismissal would “not
take effect until October 28, 2020,” when the Speedy Trial
Act clock would expire. 5 On that date, the district court
entered a short order dismissing the indictment with
prejudice and exonerating Olsen’s bond.
III.
A.
We are asked to provide guidance on the application of
the Speedy Trial Act’s ends of justice provision, 18 U.S.C.
§ 3161(h)(7)(A), in the context of the challenges presented
by the COVID-19 pandemic. Olsen urges us to adopt the
district court’s reading of § 3161(h)(7)(A)—that
“[c]ontinuances under the ‘ends of justice’ exception in the
Speedy Trial Act are appropriate if without a continuance,
holding the trial would be impossible.” We decline to do so.
5
The parties do not dispute that the eight continuances in this case
postponed Olsen’s trial from September 5, 2017 to October 13, 2020.
The district court’s orders excluded this time from the calculation of the
date by which Olsen’s trial was required to commence. Based on these
exclusions, the seventy-day Speedy Trial Act period ran from July 11,
2017 to September 4, 2017 (fifty-five days) and from October 13, 2020
to October 29, 2020 (fifteen days).
UNITED STATES V. OLSEN 17
At best, this is a strained reading of the Speedy Trial Act,
and one without support from the text of the statute or our
precedent.
In concluding that literal impossibility is the relevant
standard for an ends of justice continuance, the district court
evaluated only part of the first ends of justice factor:
“[w]hether the failure to grant such a continuance in the
proceeding would be likely to make a continuation of such
proceeding impossible . . . .” 18 U.S.C. § 3161(h)(7)(B)(i)
(emphasis added). In support of this interpretation, Olsen
points to two of our precedents evaluating the Speedy Trial
Act’s ends of justice provision. In Furlow v. United States,
we noted that Mt. St. Helens had erupted two days before the
defendant’s trial, which “interrupted transportation,
communication, etc. (affecting the abilities of jurors,
witnesses, counsel, officials to attend the trial).” 644 F.2d at767–68. Because of the logistical problems caused by the
eruption, the district court continued the trial for two weeks
past the prior Speedy Trial Act deadline under the ends of
justice continuance provision. Id. Recognizing the
“appreciable difficulty expected with an incident/accident of
earth-shaking effect,” we held that this “relatively brief”
delay did not violate the Speedy Trial Act. Id. at 769.
Likewise, we found no Speedy Trial Act violation in
United States v. Paschall, where the district court granted an
eight-day ends of justice continuance of the Speedy Trial
Act’s charging deadline because the grand jury was unable
to form a quorum due to a major snowstorm. 988 F.2d 972,
973–75 (9th Cir. 1993). 6 Specifically, we concluded that an
6
Paschall addressed the time between arrest or service of summons
and an indictment, which cannot exceed thirty days. See 18 U.S.C.
§ 3161(b). Olsen’s case addresses the time between indictment or
18 UNITED STATES V. OLSEN
ends of justice continuance was justified because the
“interest of justice outweigh[ed] the public’s and
defendant’s interest in a speedy trial” and “the inclement
weather made the proceedings impossible.” Id. at 975.
Contrary to Olsen’s argument, nothing in Furlow or
Paschall establishes a rule that an ends of justice
continuance requires literal impossibility. In those cases, we
simply affirmed ends of justice continuances because the
eruption of a volcano and a major snowstorm temporarily
impeded court operations. In other words, where it was
temporarily impossible to conduct court proceedings for
relatively brief periods, we found no Speedy Trial Act
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
arraignment and trial, which cannot exceed seventy days. See id.§ 3161(c).
7
Olsen’s reliance on out-of-circuit caselaw fares no better. See
United States v. Hale, 685 F.3d 522, 533–36 (5th Cir. 2012) (upholding
an ends of justice continuance because a key witness was unavailable
due to family emergency); United States v. Richman, 600 F.2d 286, 293–
94 (1st Cir. 1979) (upholding an ends of justice continuance due to a
blizzard); United States v. Stallings, 701 Fed. App’x. 164, 170–71 (3d
Cir. 2017) (upholding an ends of justice continuance based in part on
UNITED STATES V. OLSEN 19
A proper reading of 18 U.S.C. § 3161(h)(7)(B)(i)
compels the opposite result. This provision directs the
district court to consider “[w]hether the failure to grant” a
continuance would make continuing the proceedings
impossible. 18 U.S.C. § 3161(h)(7)(B)(i) (emphasis added).
Because not granting the government’s continuance meant
that the Speedy Trial Act clock would necessarily expire
before Olsen could be brought to trial, it follows that the
district court’s “failure to grant” an ends of justice
continuance in this case did make “a continuation of
[Olsen’s] proceeding impossible.” Id. The district court
instead considered only whether it was physically
impossible to hold a trial. Nothing in the Speedy Trial Act
limits district courts to granting ends of justice continuances
only when holding jury trials is impossible. See id. This is
an unnecessarily inflexible interpretation of a provision
meant to provide necessary flexibility to district courts to
manage their criminal cases. See Bloate v. United States,
559 U.S. 196, 214 (2010) (citing Zedner, 547 U.S. at 498);
see also S. Rep. No. 93–1021, 93d Cong., 2d Sess. 39 (1974)
(noting that the ends of justice provision is “the heart of the
speedy trial scheme” and provides for “necessary
flexibility.”).
In sum, the district court committed clear error by
reading the word “impossible” from 18 U.S.C.
prosecutor’s family emergency and scheduling conflicts); United States
v. Scott, 245 Fed. App’x. 391, 393–94 (5th Cir. 2007) (upholding an ends
of justice continuance based in part on Hurricane Katrina); United States
v. Correa, 182 F. Supp. 2d 326, 327–29 (S.D.N.Y. 2001) (upholding an
ends of justice continuance due to the September 11, 2001 terrorist
attacks). There is nothing in any of these cases to support the
unwarranted reading of trial impossibility into the ends of justice
provision that the district court adopted and Olsen advocates here.
20 UNITED STATES V. OLSEN
§ 3161(h)(7)(B)(i) in isolation. This is enough for us to
reverse. See Murillo, 288 F.3d at 1133. 8
B.
By solely focusing on the word “impossible” in
18 U.S.C. § 3161(h)(7)(B)(i), the district court also
overlooked the rest of the provision, which requires courts
to ask whether the district court’s failure to apply an ends of
justice continuance “would . . . result in a miscarriage of
justice.” We find the miscarriage-of-justice provision
particularly salient in Olsen’s case.
Olsen was indicted in July 2017 on thirty-four counts
related to his prescribing dangerous combinations and
unnecessary amounts of highly regulated pain medications,
and was granted pretrial bond. He then obtained eight trial
continuances, including one over the government’s
objection, effectively delaying his trial for well over three
years. After the Central District suspended jury trials, Olsen
insisted on sticking to his scheduled trial date. By that time,
the prosecution had been ready for trial for months and was
wholly blameless for the Central District’s suspension of
jury trials.
The district court’s failure to even mention these
important facts in its dismissal order—especially the years
of continuances while Olsen was on pre-trial release and the
absence of any government culpability or minimal prejudice
to Olsen—is troubling. Olsen’s argument, that the district
court’s finding that a trial was not impossible “implicitly”
8
Because the basis for the district court’s dismissal order was
statutory only, we need not separately address Olsen’s Sixth Amendment
claim.
UNITED STATES V. OLSEN 21
includes a finding that there would be no miscarriage of
justice, is simply not convincing. We find no difficulty in
concluding that the district court’s failure to grant the
government’s motion and subsequent dismissal of Olsen’s
indictment, under the unique facts of Olsen’s case and the
Central District’s suspension of jury trials, resulted in a
miscarriage of justice. 18 U.S.C. § 3161(h)(7)(B)(i).
C.
What is more, the district court failed to consider other,
non-statutory factors. Section 3161(h)(7)(B) instructs
district courts to consider a list of enumerated factors,
“among others,” in deciding whether to grant an ends of
justice continuance. Although district courts have broad
discretion to consider any factors based upon the specific
facts of each case, we have reversed rulings where district
courts have entirely failed to address relevant non-statutory
considerations. See, e.g., United States v. Lloyd, 125 F.3d
1263, 1269 (9th Cir. 1997) (finding the district court should
have considered whether the parties “actually want[ed] and
need[ed] a continuance, how long a delay [was] actually
required, [and] what adjustments [could have been] made
with respect to the trial calendars [to avoid a continuance]”).
The Speedy Trial Act and our case law are silent as to
what non-statutory factors district courts should generally
consider. Nevertheless, in the context of the COVID-19
pandemic, we find relevant the following non-exhaustive
factors: (1) whether a defendant is detained pending trial;
(2) how long a defendant has been detained; (3) whether a
defendant has invoked speedy trial rights since the case’s
inception; (4) whether a defendant, if detained, belongs to a
population that is particularly susceptible to complications if
infected with the virus; (5) the seriousness of the charges a
defendant faces, and in particular whether the defendant is
22 UNITED STATES V. OLSEN
accused of violent crimes; (6) whether there is a reason to
suspect recidivism if the charges against the defendant are
dismissed; and (7) whether the district court has the ability
to safely conduct a trial. 9
This non-exhaustive list, in the context of the pandemic,
facilitates the proper balancing of whether the ends of justice
served by granting a continuance outweigh the best interest
of the public and the defendant in convening a speedy trial.
See 18 U.S.C. § 3161(h)(7)(A); see also United States v.
Engstrom, 7 F.3d 1423, 1426 (9th Cir. 1993) (noting that that
the ends of justice provision promotes “an express balancing
of the benefit to the public and defendant from a continuance
with the costs imposed” of such a continuance). The record
does not show that the district court considered any of these
relevant factors. See 18 U.S.C. § 3161(h)(7)(A).
Finally, we note that Olsen’s reliance on United States v.
Clymer, 25 F.3d 824, 829 (9th Cir. 1994), is not helpful. It
is true “that the ends of justice exclusion . . . was intended
by Congress to be rarely used, and that the provision is not a
general exclusion for every delay.” Clymer, 25 F.3d at 828
9
The district court’s order questioned why the Central District of
California conditioned its ability to hold jury trials on orders issued by
the state government. See Blueprint for a Safer Economy, available
at https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/
CaliforniaBlueprintDataCharts.aspx. Specifically, the district court
observed that under California’s Blueprint, certain essential sectors such
as healthcare, emergency services, food, and energy were permitted to
continue operations. This overlooks that the Blueprint’s color-coded
tiers are premised on several factors that influence the risk of viral
transmission, including ventilation in particular facilities, whether
occupants of a facility can socially distance, and the duration of the
gathering. The record in this case does not allow comparison between
the federal district court in Santa Ana and nearby state courthouses based
on the Blueprint’s risk factors.
UNITED STATES V. OLSEN 23
(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
10
Olsen repeatedly points to state courts in the Central District of
California for his position that it is not impossible to conduct a jury trial
safely. But just because state courts are holding jury trials does not mean
that they are necessarily holding them safely. It is unknown whether
jurors, witnesses, court staff, litigants, attorneys, and defendants are
being subject to serious risks and illness. Nothing in the record indicates
that the Central District was able to hold a jury trial safely in October
2020, when Olsen’s case was set for trial. Indeed, at argument, Olsen’s
counsel could not point to anything in the district court’s dismissal order
or the record, aside from noting that the court would have utilized
unidentified “similar safety precautions” to those state courts did, to
adequately address these safety concerns. The district court in fact
acknowledged that even though it was possible to hold trials, there were
significant health risks in doing so.
24 UNITED STATES V. OLSEN
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.” 18 U.S.C. § 3162(a)(2). A
court’s decision whether to dismiss the charges with or
without prejudice depends on a “careful application” of these
factors to each particular case. Clymer, 25 F.3d at 831.
Here, the district court failed to adequately consider all
the relevant factors as applied to Olsen’s case. See Taylor,
487 U.S. at 344. The district court primarily based its
decision on the perceived need to deter the Central District
from continuing its jury trial suspension. Olsen contends
that the district court based its dismissal with prejudice on
the factors of only “this particular case.” The record shows
otherwise. It appears that the only case-specific factor the
court considered was the seriousness of Olsen’s crimes,
which it properly weighed against a dismissal with
prejudice. See United States v. Medina, 524 F.3d 974, 986–
UNITED STATES V. OLSEN 25
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 18 U.S.C. § 3162(a)(2). In dismissing Olsen’s
indictment with prejudice, the district court presumed that
any adequate remedy must bar reprosecution. The district
judge characterized dismissal with prejudice as “the only
sanction with enough teeth to create any hope of deterring
additional delay in the resumption of jury trials.” The court
explained that dismissal without prejudice would let the
government reindict “and proceed as if no constitutional
26 UNITED STATES V. OLSEN
violation ever occurred” and concluded that this would be a
“meaningless result.” This reasoning was incorrect. The
Supreme Court has made clear that “[d]ismissal without
prejudice is not a toothless sanction: it forces the
Government to obtain a new indictment if it decides to
reprosecute, and it exposes the prosecution to dismissal on
statute of limitations grounds.” Taylor, 487 U.S. at 342; see
also United States v. Newman, 6 F.3d 623, 627 (9th Cir.
1993) (rejecting argument “that dismissal without prejudice
renders the Speedy Trial Act meaningless”). Because the
district court’s ruling was based on an erroneous view of the
law, it abused its discretion in dismissing with prejudice. See
United States v. Arpaio, 951 F.3d 1001, 1005 (9th Cir. 2020).
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.”).
UNITED STATES V. OLSEN 27
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.
MURGUIA, Chief Judge, and CHRISTEN, Circuit Judge,
concurring in the denial of rehearing en banc:
“The correction of legal errors committed by the district
courts is the function of the Court of Appeals . . . .” Plotkin
v. Pac. Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982).
Here, the district court erred by denying the government’s
motion for an ends-of-justice continuance under the Speedy
Trial Act based on a physical impossibility standard. That
error required reversal. The dissent does not dispute that it
28 UNITED STATES V. OLSEN
was error to dismiss the indictment against Dr. Olsen with
prejudice. See Dissent at 93–94. That error separately
required reversal. As a result, our panel reversed the district
court’s ruling and ordered that the serious charges against
Olsen be reinstated on remand. United States v. Olsen, 995
F.3d 683, 686 (9th Cir. 2021). We did not predict or
foreclose further Speedy Trial Act motions practice in this
case. Because the district court clearly misinterpreted and
misapplied the Speedy Trial Act, we stand firmly behind our
opinion and concur with the denial of rehearing en banc.
I.
The Sixth Amendment provides criminal defendants
“the right to a speedy and public trial,” U.S. CONST. amend.
VI, but it does not outline how this right should be
safeguarded. As a result, Congress enacted the Speedy Trial
Act, setting specified time limits within which criminal trials
must commence. Pub. L. No. 93-619, 88 Stat. 2076 (1975);
see Furlow v. United States, 644 F.2d 764, 768–69 (9th Cir.
1981) (per curiam) (describing the Act as the Sixth
Amendment’s “implementation”).
The Act requires that a criminal trial begin within
seventy days from the date on which an indictment is filed,
or the date on which the defendant makes an initial
appearance, whichever occurs later. 18 U.S.C. § 3161(c)(1).
The Act also details “periods of delay that are excluded in
computing the time within which trial must start.” Zedner v.
United States, 547 U.S. 489, 497 (2006); see 18 U.S.C.
§ 3161(h). The Speedy Trial Act’s ends-of-justice exception
excludes from the seventy days “any period of delay . . .
based on [the court’s] findings that the ends of justice served
by taking such action outweigh the best interest of the public
and the defendant in a speedy trial.” Id. § 3161(h)(7)(A)
(emphasis added). In other words, the ends-of-justice
UNITED STATES V. OLSEN 29
exception employs a balancing test. See id. The Act also
requires courts to consider a non-exhaustive list of factors in
determining whether to grant an ends-of-justice continuance.
See id. § 3161(h)(7)(B). In Olsen’s case, the most relevant
factor was: “Whether the failure to grant such a continuance
in the proceeding would be likely to make a continuance of
such proceeding impossible, or result in a miscarriage of
justice.” Id. § 3161(h)(7)(B)(i).
II.
In July 2017, Jeffrey Olsen, a physician, was indicted on
thirty-four counts of unlawful distribution of opioids to his
patients. Four of his patients died from apparently related
drug overdoses. Olsen was arraigned in the Central District
of California on July 11, 2017, and pleaded not guilty. The
same day, the district court set a $20,000 unsecured
appearance bond, scheduled his trial for September 5, 2017,
and released Olsen. He has remained out of custody ever
since.
Over a three-year period, the court continued Olsen’s
trial date eight times. The parties stipulated to seven of the
continuances under § 3161(h)(7)’s ends-of-justice exclusion
and the district court even granted Olsen’s sixth continuance
over the government’s objection. After Olsen’s sixth
continuance, COVID-19 hit California. In response, the
Central District issued the first of a series of emergency
general orders based on national, state, and local public
health emergency declarations, as well as the Centers for
Disease Control and Prevention’s (“CDC”)
recommendations for reducing exposure to the virus and
slowing its spread. These orders included the Central
District’s declaration of a judicial emergency pursuant to
18 U.S.C. § 3174. See In re Approval of Jud. Emergency
Declared in the Cent. Dist. of Cal., 955 F.3d 1140, 1141 (9th
30 UNITED STATES V. OLSEN
Cir. 2020). The dissent from denial of rehearing en banc
makes no mention of the fact that the Circuit’s Judicial
Council reviewed the Central District’s General Order,
thereafter approving its declaration of a judicial emergency.
See id. (in reference to the Central District’s General Order
suspending jury trials, the Judicial Council noted that the
district court’s chief judge “declared a thirty-day judicial
emergency” by general order “pursuant to 18 U.S.C.
§ 3174(e). Finding no reasonably available remedy, the
Judicial Council agreed to continue the judicial emergency
for an additional one-year period and suspend the time limits
of 18 U.S.C. § 3161(c).”).
Most relevant here are the Central District’s orders
suspending all jury trials. Then-Chief Judge Virginia A.
Phillips approved the suspension on March 13, 2020. That
order was issued in the first uncertain days of the pandemic,
and it observed that additional orders might follow. See Gen.
Ord. 20-02. The General Order was later extended six times.
See Gen. Ord. 20-05; Gen. Ord. 20-08; Gen. Ord. 20-09;
Gen. Ord. 20-12; Gen. Ord. 20-15; Gen. Ord. 21-08. Each
suspension order received unanimous or majority votes of
the district judges “to protect public health” and “to reduce
the size of public gatherings and reduce unnecessary travel,”
consistent with the recommendations of public health
authorities. See, e.g., Gen. Ord. 20-09. Following the filing
of General Order 20-02 on March 17, 2020, Olsen stipulated
to two additional continuances under the ends-of-justice
exclusion.
Approximately two months before Olsen’s trial date, the
government expressed its intention to file an ex parte
application for a continuance, similar to the request the
district court granted Olsen prior to the pandemic. For the
first time ever, the district court expressed its intention to
UNITED STATES V. OLSEN 31
reject the ends-of-justice continuance request, making plain
its sharp disagreement with the other judges in the Central
District.
The trial judge’s subsequent on-record comments reflect
his discontent. Indeed, the trial judge explicitly stated that
he disagreed with the decision made by “the great majority
of the judges” in the Central District to stay trials during the
COVID-19 pandemic. The district judge also made clear
that he intended to enforce “consequences to the judges in
the Central District.” In addition, the district judge’s
comments reflect his misapplication of the standard for
determining whether an ends-of-justice continuance should
be granted: “It’s not an issue of balancing the constitutional
right with the danger of conducting a jury trial,” and “the
way I look at it, it’s not a balancing test.” The record
memorializes that the district court’s misguided motive for
dismissing Olsen’s indictment with prejudice was to force
resolution of the trial judge’s ongoing disagreement with the
Central District’s decision to suspend criminal jury trials due
to the COVID-19 pandemic: “I think we have to use this case
to try to expedite this issue for everybody’s sake.”
At the outset of the hearing on Olsen’s motion to dismiss
the indictment, the district court circulated a tentative order
denying the motion without prejudice. But after counsel
clarified that the applicable extension of the statute of
limitations would allow the government to re-file all counts,
see 18 U.S.C. § 3288, the district court expressed doubt that
dismissal without prejudice would have “teeth.”
The court’s written order stated that dismissal with
prejudice: (1) “is the only sanction with enough teeth to
create any hope of deterring additional delay in the
resumption of jury trials and avoiding further dismissals of
indictments,” (2) would prevent the government from
32 UNITED STATES V. OLSEN
reindicting “and proceed[ing] as if no constitutional
violation ever occurred,” and (3) would not be a
“meaningless result” with “no adverse consequences [for]
the Central District,” unlike a dismissal without prejudice.
The order dismissing Olsen’s indictment also explained
that the court could not grant a continuance unless “holding
the trial would be impossible,” rather than the proper Speedy
Trial Act standard allowing for an ends-of-justice
continuance when “the ends of justice served by taking such
action outweigh the best interest of the public and the
defendant in a speedy trial,” 18 U.S.C. § 3161(h)(7)(A).
Despite this sequence of events, the dissent argues that our
panel erred in reversing the district court’s dismissal.
On March 18, 2021, our panel reversed and remanded
“with instructions to reinstate Olsen’s indictment, grant an
appropriate ends of justice continuance, and set the case for
trial.” Olsen, 995 F.3d at 695. We did not reach this
conclusion lightly, nor did we foreclose future motions
practice on Speedy Trial Act grounds. We were “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.” Id. Still, we
could not ignore the district court’s legally erroneous
interpretation and application of the Speedy Trial Act,
particularly its understanding that “nothing short of ‘actual
impossibility’” could compel another ends-of-justice
continuance in Olsen’s case. Id. at 689–93. Nor could we
overlook the manifest injustice that would result if these
serious charges were dismissed, with prejudice, due to an
internal dispute between the trial court judges serving in the
Central District.
UNITED STATES V. OLSEN 33
III.
A.
The dissent first asserts that “the applicable General
Order here did not rest on a proper application of Speedy
Trial Act standards.” Dissent at 77 (emphasis in original).
Not only is this incorrect, the dissent misreads what it calls
the “applicable General Order”—General Order 20-09—by
considering it in a vacuum. General Order 20-09 specifically
found that “the increase in reported COVID-19 infections,
hospitalizations, and deaths serve[d] the ends of justice and
outweigh[ed] the interests of the public and the defendants
in a speedy trial.” Gen. Ord. 20-09 at 3. Therefore, applying
the correct standard set forth in 18 U.S.C. § 3161(h)(7)(A),
the majority of district court judges in the Central District
were persuaded that the ends of justice outweighed the best
interest of the public and the defendant in a speedy trial due
to the COVID-19 pandemic. 1
Our opinion noted that the Central District of
California’s emergency general orders clearly applied the
Speedy Trial Act standard:
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
1
The purpose of a general order is to regulate court operations.
Here, a majority of federal judges in the Central District agreed that the
general orders were the best response to the burgeoning health and safety
risks presented by the pandemic.
34 UNITED STATES V. OLSEN
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.
Id. at 695.
The dissent only quotes a subsection of General Order
20-09’s Speedy Trial analysis and alleges that the order
“mere[ly] recit[es]” the Speedy Trial Act’s “ultimate
standard.” Dissent at 77–78. Not so. General Order 20-09
details an increase in COVID-19 infections and deaths, as
well as CDC guidance related to in-person gatherings to
support its conclusion that the balance weighed in favor of
continuing jury trials in the Central District. Gen. Ord. 20-
09 at 1–3.
Moreover, the unprecedented danger to health and safety
presented by the pandemic, particularly in its earlier days
when Olsen sought to try his case, cannot be overstated. The
dissent opines that the majority held, “to justify a
continuance, it was sufficient that the General Order simply
cited the ‘risk’ to ‘health and safety . . . .’” Dissent at 83
(quoting Olsen, 995 F.3d at 695). But our opinion
acknowledged that the Central District’s broad continuation
of jury trials was triggered by “a global pandemic that ha[d]
claimed more than half a million lives in this country, and
nearly 60,000 in California alone [at the time of our
opinion].” Olsen, 995 F.3d at 693. The dissent, in hindsight,
attempts to support its argument by diminishing the severity
UNITED STATES V. OLSEN 35
of the pandemic during this time, but the numbers speak for
themselves.
The dissent next argues that, by allowing General Order
20-09 “to serve as the source of the impossibility that
justifies a continuance,” our analysis rested “on a bootstrap
argument that permits a wholesale evasion of the
impossibility standard.” Dissent at 76. Again, this is not so.
The Speedy Trial Act directs the district court to consider
“[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.”
18 U.S.C. § 3161(h)(7)(B)(i) (emphasis added). A basic
premise the district court and dissent both miss is that the
question presented was whether the failure to grant a
continuance would make it impossible to continue trial. The
district court misinterpreted this factor, believing it asks
whether holding trial is physically possible. Section
3161(h)(7)(A) required the district court to ultimately decide
whether the public’s and Olsen’s interests in a speedy trial
were outweighed by the need for the continuance; in this
case, a continuation of jury trials due to pervasive COVID-
19 infections and deaths. Accordingly, as noted in our
opinion, because not granting the government’s continuance
rendered trial impossible due to General Order 20-09’s
suspension of criminal jury trials in light of the pandemic,
Section 3161(h)(7)(A) required the district court to balance
competing interests and decide whether the public’s and
Olsen’s interests in a speedy trial outweighed the COVID-
19-inspired need for the continuance. Id. § 3161(h)(7)(A).
Though the dissent from the denial of rehearing en banc
obliquely suggests the Central District’s General Orders are
the issue, the question presented to our panel was whether
the district court misinterpreted the Speedy Trial Act to
require that trials go forward if it is physically possible to
36 UNITED STATES V. OLSEN
conduct them, rather than requiring a balancing of factors.
The answer was plainly yes.
In addition to misreading the Speedy Trial Act, the
dissent misreads our case law—principally Furlow v. United
States, 644 F.2d 764 (9th Cir. 1981) (per curiam), and United
States v. Paschall, 988 F.2d 972 (9th Cir. 1993)—as support
for the district court’s conclusion that ends-of-justice
continuances may only be granted when a trial court finds it
physically impossible to hold trial. See Dissent at 82. But
Furlow and Paschall provide no support for the dissent’s
view. In these two cases, natural disasters made compliance
with the Speedy Trial Act deadlines practically impossible,
but we have never said that a finding of physical
impossibility is a prerequisite to granting an ends-of-justice
continuance. 2 Such an interpretation contradicts the plain
language of the Speedy Trial Act, which expressly requires
that courts consider several factors. 18 U.S.C.
§ 3161(h)(7)(B).
The dissent’s reading of the Speedy Trial Act also defies
case law indicating that other considerations may warrant a
continuance. See, e.g., United States v. Apperson, 441 F.3d
1162, 1180 (10th Cir. 2006) (granting a brief continuance to
allow government counsel time to prepare in order to avoid
a “miscarriage of justice”); United States v. Hill, 197 F.3d
436, 441–43 (10th Cir. 1999) (holding that the “miscarriage
of justice” exception was properly applied where the
government would otherwise be forced to go to trial without
2
Paschall noted the impossibility factor in its reasoning for granting
an ends-of-justice continuance, but it did not assert that this factor was
necessary or sufficient on its own, only that it was “relevant to the present
case.” Paschall, 988 F.2d at 975. And Furlow made no mention of
impossibility whatsoever.
UNITED STATES V. OLSEN 37
a key witness and without adequate time to effectively
prepare).
The district court was required to weigh the logistical
problems and public health risks caused by COVID-19,
among other factors, in balancing whether the ends of justice
served by continuing trial outweighed the best interest of the
public and the defendant in a speedy trial. Accordingly,
though it is true that Orange County Superior Court resumed
operations during the pandemic, it is just as true that tens of
thousands of people have contracted COVID-19—and
thousands have died. 3 The district court was required to
3
We did not “shift[] the burden of proof on the issue of impossibility
. . . from the Government to Olsen” in stating that, “just because the state
courts are holding jury trials does not mean that they are necessarily
holding them safely.” Dissent at 87 (citing Olsen, 995 F.3d at 693 n.10).
Without record support, the district court announced that it was possible
to move forward with trial, apparently because at least some state court
trials were going forward. The record makes clear that the district court
had made up its mind, despite the government’s showing that the General
Orders, approved by the Circuit Council, prevented jury trials. This does
not “necessarily mean[] that the party who had the burden of proof failed
to carry it.” Dissent at 88. It instead means that, when weighing the
relevant factors, the Central District was likely unconvinced or uncertain
that the safety protocols instituted by state courts were effective enough
to combat the spread of COVID-19, particularly given the novelty of the
virus at the time. As the dissent concedes, the “ultimate standard” for
granting an ends-of-justice continuance under the Speedy Trial Act
involves a balancing test. Dissent at 78; see also 18 U.S.C.
§ 3161(h)(7)(A). The Central District cannot be faulted for reaching a
conclusion that is contrary to what the dissent would have desired when
deciding how best to protect its citizens during a once-in-a-lifetime
pandemic.
It is far from clear that Orange County conducted operations safely.
The Los Angeles Times has since reported that four interpreters from the
Los Angeles County courthouse died from COVID-19. Matt Hamilton,
State Fines L.A. County Superior Court for Safety Violations during
38 UNITED STATES V. OLSEN
balance these realities to determine whether the ends of
justice would be served by a continuance under the Speedy
Trial Act rather than simply ending its analysis after it
decided that holding trial would be physically possible. See
18 U.S.C. § 3161(h)(7)(B)(i)–(iv).
The dissent also asserts that we did not “articulate or
apply any standard” for determining whether a trial was
“impossible.” Dissent at 80. This overlooks our discussion
clarifying that the outcomes in Furlow and Paschall did not
COVID-19 Pandemic, LOS ANGELES TIMES (July 7, 2021),
https://www.latimes.com/california/story/2021-07-07/state-issues-25-
000-fine-to-l-a-superior-court-for-safety-violations-during-pandemic
(reporting that “at least four people who worked in Los Angeles County
courthouse” died due to COVID-19). Orange County has confirmed
336,476 COVID-19 cases to date—an increase of more than 85,000
since the Olsen panel heard argument in March 2021—and has registered
5,852 deaths—an increase of nearly 2,000. See Los Angeles Times Staff,
Tracking the Coronavirus in California, LOS ANGELES TIMES,
https://www.latimes.com/projects/california-coronavirus-cases-
tracking-outbreak/ (last visited Dec. 21, 2021).
The number of cases and deaths continue to increase at alarming
levels in the counties within the Central District. To date, San
Bernardino has seen 385,830 cases and reported 6,023 deaths; Riverside:
398,957 cases and 5,452 deaths; San Luis Obispo: 32,429 cases and 366
deaths; Santa Barbara: 48,861 cases and 562 deaths; Ventura: 106,809
cases and 1,203 deaths; and finally, Los Angeles: 1,555,065 cases and
27,189 deaths. As of today’s date, 2,864,427 citizens in the Central
District have tested positive for some COVID-19 variant, and 46,647 of
those citizens have died as a result. The Central District accounts for
more than half of all COVID-19 cases and deaths in California:
5,204,641 Californians have tested positive, and 75,167 have died. Los
Angeles Times Staff, Tracking the Coronavirus in California, LOS
ANGELES TIMES, https://www.latimes.com/projects/california-
coronavirus-cases-tracking-outbreak/ (last visited Dec. 21, 2021); see
also TRACKING COVID-19 IN CALIFORNIA, CALIFORNIA, ALL,
https://covid19.ca.gov/state-dashboard/ (last visited Dec. 21, 2021).
UNITED STATES V. OLSEN 39
depend on a finding of physical impossibility. See Olsen,
995 F.3d at 690–91 (discussing Furlow, 644 F.2d at 767;
Paschall, 988 F.2d at 975. Though we did not attempt to
define and anticipate every circumstance in which a
continuance may outweigh the public’s and defendant’s
interests in a speedy trial, we suggested a list of non-
statutory factors to assist district courts in addressing future
motions. Id. at 690. Some of these factors may aid in
determining whether conducting trial would be physically
possible, others facilitate “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.” Id. at 693. Consistent with the
required balancing test, we sought to suggest guiding
principles for assessing the impossibility factor rather than a
hardline standard.
B.
The dissent contends that the miscarriage of justice
provision does not apply when an indictment is dismissed
for failure to conduct a timely trial. See Dissent at 89–90.
But in enacting the Speedy Trial Act, Congress specifically
noted that the dismissal of a criminal indictment on speedy
trial grounds may constitute a miscarriage of justice under
the Act. See H.R. Rep. No. 93-1508, reprinted in 1974
U.S.C.C.A.N. 7401, 7436. And the 1974 House Committee
Report makes clear that the judicial emergency provision
§ 3174 was adopted because the Committee did not wish to
leave the possibility of unjustifiable dismissals to chance:
[B]ecause of the unique circumstance in
which the Congress has placed the courts by
enacting speedy trial legislation without
providing advanced [sic] increases in
resources, it is also providing the courts with
40 UNITED STATES V. OLSEN
a tool that would permit them enough
flexibility to prevent a miscarriage of justice
by dismissing the indictments or informations
against potential criminals because of
circumstances beyond the control of an
individual court.”
In re Approval of Jud. Emergency Declared in Dist. of Ariz.,
639 F.3d 970, 980 (9th Cir. 2011) (emphasis added) (quoting
1974 U.S.C.C.A.N. 7401, 7436).
This Circuit’s Judicial Council has treated the
miscarriage of justice exception the same way. The Judicial
Council’s opinion, In re Approval of Judicial Emergency
Declared in District of Arizona, ratified a one-year extension
of judicial emergency, suspending the Speedy Trial Act’s
seventy-day time limit. Id. at 971. The Judicial Council
observed 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. at 972 (citing 1974
U.S.C.C.A.N. 7401). The Judicial Council also observed:
“[T]he emergency provision ha[d] been used twice
previously to avoid imminent criminal dismissals as a
sanction for non-compliance.” Id. (first citing United States
v. Bilsky, 664 F.2d 613, 619–20 (6th Cir. 1981)); then citing
United States v. Rodriguez–Restrepo, 680 F.2d 920, 921 n.1
(2d Cir. 1982)). Given this Circuit precedent, it is peculiar
that the dissent so steadfastly claims jury trials may not be
extended under the Speedy Trial Act by general order,
particularly in times of exceptional crisis pursuant to
18 U.S.C. § 3174.
The dissent attempts to distinguish Olsen’s case by
noting, as we did in our opinion, that Olsen’s indictment
preceded the Central District’s declaration of judicial
UNITED STATES V. OLSEN 41
emergency. See Dissent n. 19 (citing Olsen, 995 F.3d at 687
n.2). But as we explained, the timing of Olsen’s indictment
meant only that he was subject to the 70-day Speedy Trial
Act clock rather than the 180-day period instituted during the
judicial emergency. Olsen, 995 F.3d at 687 n.2.
Notwithstanding the general timing of Olsen’s Speedy Trial
Act clock, Olsen’s case was before the Central District of
California, and the Central District had declared a judicial
emergency. In fact, following the declaration of judicial
emergency, Olsen obtained continuances under the ends-of-
justice exclusion, citing the COVID-19 pandemic and the
judicial emergency as reasons for the continuances. Thus,
Olsen invoked the Central District’s judicial emergency
when it worked to his benefit, and the dissent acknowledged
that the Central District’s emergency general orders applied
to Olsen. Yet the dissent goes on to take a starkly
inconsistent position by arguing that the Central District’s
judicial emergency did not apply to Olsen when it discusses
whether the dismissal of his indictment constituted a
miscarriage of justice.
C.
Finally, the dissent alleges that we watered down the
Speedy Trial Act by enumerating our own set of “non-
statutory factors” the district court should have considered.
Dissent at 84. This is a serious misreading of our opinion.
Rather than faulting the district court for failing to consider
the factors we identified, we took issue with the court’s
failure to consider any relevant non-statutory factors. We
found relevant certain non-exhaustive considerations in the
context of the COVID-19 pandemic, Olsen, 995 F.3d 693,
and identified them because “[t]he Speedy Trial Act and our
case law are silent as to what non-statutory factors district
courts should generally consider,” id. at 692. By suggesting
42 UNITED STATES V. OLSEN
factors trial courts may consider during this pandemic—
including whether the defendant is incarcerated while
awaiting trial—we did not rewrite the statutory factors in
order to “evade their limits,” as the dissent asserts. Dissent
at 84. Indeed, in their briefs to the district court, the
government and Olsen argued other unenumerated factors
gleaned from other Speedy Trial Act cases. See United
States v. Loud Hawk, 474 U.S. 302, 311 (1986); United
States v. Harris, No. 2:20-CR-00049, 2020 WL 2539321, at
*3 (E.D. Cal. May 19, 2020); United States v. Smith, No.
2:19-CR-00213, 2020 WL 2541713 (E.D. Cal. May 19,
2020)). Our opinion simply anticipated that many similar
cases will be presented as the pandemic wears on and offered
guidance for district courts to consider.
The dissent argues that we solely relied on the seventh
factor (i.e., whether the district court had the ability to safely
conduct trial). See Dissent at 85. Our opinion says
otherwise. It explains that Olsen posted bond and has
remained out of custody since his initial appearance on July
11, 2017, so he was not detained pending trial and was not
detained for a significant period of time (addressing the first
and second factors). Olsen, 995 F.3d at 688. We noted there
had been eight continuances of Olsen’s trial date, seven of
which were reached by stipulation with the government, so
he had not invoked his speedy trial rights since the case’s
inception (noting the third factor). Id. We explained that
Olsen’s charges are extremely serious: he is a physician
accused of illegally prescribing opioids that allegedly led to
the deaths of four patients (invoking the fifth factor). Id. at
688–89.
With respect to the seventh factor, the dissent
acknowledges that, “[i]n ordinary usage, the term
‘impossible’ has a range of meanings that extend from
UNITED STATES V. OLSEN 43
‘incapable of being or of occurring’ . . . to ‘extremely and
almost insuperably difficult under the circumstances.’”
Dissent at 81 (quoting WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE
1136 (1981)). Nevertheless, the dissent takes issue with
considering the safety of the public, court staff, and counsel
in an impossibility analysis. See Dissent at 81–82.
Consistent with Paschall and Furlow, if conducting trial is
“extremely and almost insuperably difficult” due to health
and safety concerns, this may counsel in favor of continuing
trial.
IV.
Our panel was tasked with deciding whether the district
court erred by denying the government’s motion for an ends-
of-justice continuance, and dismissing the defendant’s case
with prejudice pursuant to 18 U.S.C. § 3161(h)(7)(B) based
on its conclusion that it would be possible to hold trial, even
if doing so posed public health risks. Nothing in our opinion
minimizes the importance of the constitutionally guaranteed
right to a speedy trial, and we will surely be presented with
future cases in which the balancing required by the Speedy
Trial Act will present different results.
The COVID-19 pandemic presents a once-in-a-lifetime
catastrophe that has unfortunately endured for months,
causing fear and trepidation, serious illness and injury—
from which some will never fully recover—and worst of all,
national and worldwide fatalities. The Central District has
been one of the hardest hit areas in our country. In Olsen,
we acknowledged the continuing health and safety issues the
COVID-19 pandemic presents, while simultaneously
balancing the rights of the accused. The district court’s
dismissal of the serious charges in this case with prejudice
aimed to enforce “consequences to the judges in the Central
44 UNITED STATES V. OLSEN
District” rather than apply the balancing required by the
Speedy Trial Act. Because the district court misapplied the
standard for an ends-of-justice continuance, we stand behind
our opinion and concur with the denial of rehearing en banc.
BUMATAY, Circuit Judge, concurring in the denial of
rehearing en banc:
These are trying times. The COVID-19 pandemic has
forced our nation and our courts to confront novel, difficult
issues. In response to COVID-19, governments at all levels
have enacted measures to mitigate the spread of the deadly
virus. Some of these measures have tested the limits of the
Constitution. But “[e]ven in times of crisis,” judges must
“not shrink from our duty to safeguard th[e] rights”
guaranteed by the Constitution. Tandon v. Newsom, 992
F.3d 916, 939 (9th Cir. 2021) (Bumatay, J., dissenting in part
and concurring in part). The Supreme Court has instructed
us time and again that our constitutional rights are entitled to
the utmost protection—even in a pandemic. Thus, we never
“water[] down” our examination of alleged constitutional
infringements and must always uphold that the Constitution
“really means what it says.” Tandon v. Newsom, 141 S. Ct.
1294, 1298 (2021) (simplified). And courts cannot punt on
vigorously enforcing the protections of the Constitution
because we are grappling with an unquestionably serious
crisis. So we must always undertake an exacting look at
actions that may violate a constitutional right.
This case falls into the category of difficult matters borne
out of the COVID-19 pandemic. Last year, the federal
district court in Los Angeles, California indefinitely
suspended trials because of COVID-19. Jeffrey Olsen, a
defendant out on bail, invoked his speedy trial rights. After
UNITED STATES V. OLSEN 45
the government requested a two-month continuance of his
trial, the district court declared a violation of the Speedy
Trial Act and the Speedy Trial Clause of the Constitution.
What’s more, the district court dismissed the charges against
Olsen with prejudice. Our court reversed on statutory
grounds.
So this case requires us to look to the meaning of our
sacred right to a speedy trial as guaranteed by the Sixth
Amendment and see what leeway, if any, the Speedy Trial
Act grants in the face of COVID-19. While the matter poses
some troubling circumstances, Olsen’s constitutional speedy
trial right was not violated. At its core, the Speedy Trial
Clause ensures that defendants are not locked up in jail
indefinitely pending trial. This enforces the guarantee
against arbitrary detention. But since Olsen wasn’t detained
pretrial and the delay here was not long enough to justify
dismissal according to our precedent, no violation occurred.
That said, this case would be much different if Olsen had
been incarcerated during the COVID-19 pandemic and did
not receive the trial he was entitled to under the Constitution.
In that situation, the constitutional analysis would be
significantly different in my view. And while I would
quibble with the court’s statutory analysis, I agree that the
Speedy Trial Act does not dictate dismissal here.
For these reasons, I concur with the denial of rehearing
en banc.
I.
“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial[.]” U.S. Const. amend. VI.
As the Supreme Court recognized, “the right to a speedy trial
is as fundamental as any of the rights secured by the Sixth
Amendment.” Klopfer v. North Carolina, 386 U.S. 213, 223
46 UNITED STATES V. OLSEN
(1967). While the Speedy Trial Clause stands among our
most sacred safeguards of individual liberty, its full meaning
is less clear. It has been described as both “fundamental”
and “amorphous”; both “mechanical” and “slippery.” 1
The full contours of the right may be unresolved, but the
text and history of the Speedy Trial Clause establish an
enduring principle: the primary guarantee of the right is to
protect against prolonged pretrial detention by the
government. Olsen was on bail pretrial and, while the
indefinite suspension of jury trials is disconcerting, the trial
delay doesn’t appear to offend the core right as established
by the Sixth Amendment. 2
A.
Like most of our rights, the right to a speedy trial is
rooted in English legal tradition. The earliest known
expression of the speedy trial right comes from the Assize of
1
See Alfredo Garcia, The Sixth Amendment in Modern American
Jurisprudence 157 (1992) (simplified); George C. Thomas III, When
Constitutional Worlds Collide: Resurrecting the Framers’ Bill of Rights
and Criminal Procedure, 100 Mich. L. Rev. 145, 153–54 (2001).
2
The panel neglected to analyze Olsen’s Speedy Trial Clause claim
even though the district court’s dismissal also hinged on a constitutional
violation. See United States v. Olsen, 995 F.3d 683, 691 n.8 (9th Cir.
2021). That was a mistake. What satisfies the Speedy Trial Act may
still violate the Sixth Amendment, and vice versa. See United States v.
Thirion, 813 F.2d 146, 154 (8th Cir. 1987) (“Sixth amendment
challenges receive separate review distinct from the Speedy Trial Act.”);
United States v. Gonzalez, 671 F.2d 441, 442 (11th Cir. 1982) (“The
rights of criminal defendants under the Speedy Trial Act and the sixth
amendment are distinct[.]”); United States v. Bilsky, 664 F.2d 613, 617
(6th Cir. 1981) (There is a “critical difference . . . between the dismissals
available under the Speedy Trial Act and the Supreme Court
interpretations [of the Sixth Amendment right].”).
UNITED STATES V. OLSEN 47
Clarendon of 1166—King Henry II’s attempt to establish
rudimentary rules for criminal procedure. 3 The fourth
provision of the Assize provided:
And when a robber or murderer or thief, or
harbourers of them, shall be taken on the
aforesaid oath, if the Justices shall not be
about to come quickly enough into that
county where they have been taken, the
sheriffs shall send word to the nearest Justice
through some intelligent man, that they have
taken such men; and the Justices shall send
back word to the sheriffs where they wish
those men to be brought before them: and the
sheriffs shall bring them before the Justices.
And . . . there, before the Justice, they shall
do their law. 4
The Assize thus established a prisoner’s right to be
brought promptly before a judge and have his case heard.
And if no royal judge was readily available in the county, the
sheriffs had to bring the prisoner elsewhere.
Almost fifty years later, in 1215, King John codified the
right in the Magna Carta—the seminal charter of English
rights. The charter guaranteed that “[w]e will sell to no man,
3
Patrick Ellard, Learning from Katrina: Emphasizing the Right to a
Speedy Trial to Protect Constitutional Guarantees in Disasters, 44 Am.
Crim. L. Rev. 1207, 1209 (2007).
4
Assize of Clarendon, 1166 ¶ 4, available at
https://avalon.law.yale.edu/medieval/assizecl.asp.
48 UNITED STATES V. OLSEN
we will not deny or defer to any man either justice or right.” 5
To Sir Edward Coke, these words meant:
[E]very subject of th[e] realme, for injury
done to him . . . , be he ecclesiasticall, or
temporall, free, or bond, man, or woman, old,
or young, or be he outlawed,
excommunicated, or any other without
exception, may take his remedy by the course
of the law, and have justice, and right for the
injury done to him, freely without sale, fully
without any deniall, and speedily without
delay. 6
To keep this right, the king dispatched judges to each
county of the kingdom with the duty to administer justice for
each jailed prisoner “according to the rule of law and
custome of England.” 7 By arriving in each county at least
twice a year, royal judges ensured that they “have not
suffered the prisoner to be long detained, but at their next
comming have given the prisoner full and speedy justice, by
due triall, without detaining him long in prison.” 8 Any
infringement of the prohibition against long detention
without “lawfull deliverance” would lead to the forfeiture of
5
Magna Carta, 1215 c. 40, as translated by Edward Coke, The
Second Part of the Institutes of the Laws of England 45 (London, Clarke
& Sons, 1817).
6
Coke, supra note 5 at 55. The primary “injury” in this context was
“false imprisonment” and other pre-Magna Carta abuses that prevented
prisoners from challenging their detention. See id. at 52–55.
Id. at 56 (describing the commissions of gaol delivery and oyer and
7
terminer)
8
Id. at 42.
UNITED STATES V. OLSEN 49
the jail to the king. 9 Coke noted that one of the primary
concerns for the law was that “the innocent shall not be worn
and wasted by long imprisonment, but . . . speedily come to
his triall.” 10 To him, “speedy” justice meant criminal
proceedings without prolonged pretrial detention.
The Habeas Corpus Act of 1679, 31 Car. 2, c. 2 (Eng.),
another historical predecessor of the speedy trial right, 11
further reinforced the established right against unreasonable
pretrial detentions. Parliament passed the Act after the
restoration of Charles II to prevent executive abuses,
including the long imprisonment of the Crown’s enemies
without indictment. 12 The Act addressed “great delays” by
jailers “in making Returns to Writts of Habeas Corpus” and
sought to remedy the concern that “many of the Kings
Subjects have beene and hereafter may be long detained in
Prison,” when they could have been released on bail. 13
9
Id.
10
Id. at 315.
11
In 1851, the General Court of Virginia characterized the speedy
trial right as the “re-affirmance of a principle declared and consecrated
by the famous” Habeas Corpus Act. Commonwealth v. Adcock, 49 Va.
661, 676 (Va. Gen. Ct. 1851). At the time, the General Court was
Virginia’s supreme criminal tribunal. See Jurisdiction Information,
Library of Virginia, at https://www.lva.virginia.gov/public/
guides/burned_juris/Jurisdiction_info.htm.
12
Amanda L. Tyler, A “Second Magna Carta”: The English Habeas
Corpus Act and the Statutory Origins of the Habeas Privilege, 91 Notre
Dame L. Rev. 1949, 1976 (2016); see also Alan L. Schneider, Note, The
Right to a Speedy Trial, 20 Stan. L. Rev. 476, 483 (1968).
13
Tyler, supra note 12, at 1976.
50 UNITED STATES V. OLSEN
The Act established timelines for the indictment and trial
of prisoners and penalties for the failure to adhere to the
requirements. Such mandates were “[f]or the prevention
whereof and the more speedy Releife of all persons
imprisoned for any such criminall or supposed criminall
Matters.” 14 In particular, for those persons jailed for “High
Treason or Fellony,” the Act generally required an
indictment within two court terms (a term typically only
spanning three-to-six months) or for the prisoner to be “sett
at Liberty . . . upon Baile.” 15 The Act then mandated that a
prisoner not indicted and tried by the third term “shall be
discharged from his Imprisonment.” 16
In 1765, William Blackstone wrote that English law
commanded that “no subject of England can be long
detained in prison, except in those cases in which the law
requires and justifies such detainer.” 17 Like Coke,
Blackstone noted that royal judges traveled to each county
in the kingdom to render judgment to every prisoner in the
jails, “whenever indicted, or for whatever crime
committed.” 18 The judges arrived twice every year
throughout the kingdom, except for the “four northern”
counties where it was held only once a year, and for London
14
Id. at 1976.
15
Id. at 1978 (quoting Habeas Corpus Act of 1679 § 7).
16
Id.
17
1 Commentaries on the Laws of England 131 (1st ed. 1765)
(“Blackstone”).
18
4 Blackstone 267 (1st ed. 1769).
UNITED STATES V. OLSEN 51
and Middlesex where it was held eight times a year. 19 So
“one way or other, the [jails] are cleared, and all offenders
tried, punished, or delivered, twice in every year[.]” 20 Trials
could occur with even greater expediency, when, “upon
urgent occasions, the king issues a special or extraordinary
commission . . . , confined to those offenses which stand in
need of immediate inquiry and punishment[.]” 21 But
Blackstone observed that at least twice a year, prisoners
would be tried or released—setting a general outer limit for
pretrial detention. For Blackstone, this right was the
“bulwark of [the British] constitution.” 22
B.
It was this core right against prolonged pretrial detention
that took hold and flourished in the United States. Several
of the colonial States adopted speedy trial provisions in their
state constitutions and either adopted the Habeas Corpus Act
itself or enacted similar laws. See Klopfer, 386 U.S. at 225
n.21 (citing the constitutions of Delaware, Maryland,
Pennsylvania, and Virginia); Petition of Provoo, 17 F.R.D.
183, 197 n.6 (D. Md. 1955) (collecting habeas laws). Given
that many Founders studied Coke’s writings, the
constitutional expression of the right echoed his formulation.
Klopfer, 386 U.S. at 226 (noting that Coke’s Institutes was
“the universal elementary book of law students,” widely read
by law students in the American colonies including Thomas
Jefferson, John Rutledge, and George Mason). For example,
19
4 Blackstone 266.
20
4 Blackstone 267.
21
4 Blackstone 267.
22
4 Blackstone 431.
52 UNITED STATES V. OLSEN
the Virginia Declaration of Rights, the first colonial bill of
rights, guaranteed “[i]n all capital or criminal prosecutions
. . . a right to a speedy trial.” Id. at 225 (simplified).
Of course, and most importantly for us, the People
ratified the “right to a speedy . . . trial” as part of the Sixth
Amendment. U.S. Const. amend. VI. As a delegate to the
Massachusetts ratifying convention, Abraham Holmes,
observed that the right would protect against a person being
dragged from his home, his friends, his
acquaintance, and confined in prison, until
the next session of the court, . . . and after
long, tedious, and painful imprisonment,
though acquitted on trial, may have no
possibility to obtain any kind of satisfaction
for the loss of his liberty, the loss of his time,
great expenses, and perhaps cruel
sufferings. 23
Thus, “[t]he history of the right to a speedy trial and its
reception in this country clearly establish that it is one of the
most basic rights preserved by our Constitution.” Klopfer,
386 U.S. at 226. 24
23
2 Jonathan Elliot, The Debates in the Several State Conventions
on the Adoption of the Federal Constitution as Recommended by the
General Convention at Philadelphia in 1787 110 (2d ed. 1891).
24
Commentators agree that there’s a relative “paucity” of historical
data surrounding the Founders’ adoption of the speedy trial right.
Schneider, supra note 12, at 484; see also United States v. Marion, 404
U.S. 307, 315 n.6 (1971) (describing historical evidence surrounding the
ratification of the Speedy Trial Clause as “meager”). Perhaps, this
reflects the widespread understanding of the common law right as taught
by Coke, Blackstone, and other Founding-era sources.
UNITED STATES V. OLSEN 53
Despite this storied history, surprisingly few Founding-
era cases illuminate the full meaning and scope of the speedy
trial right. But one of the most notorious cases of the
Founding era did inform the understanding of the right.
Presiding over the arrest and imprisonment of Aaron Burr
for treason, Chief Justice Marshall determined Burr was
entitled to compulsory process before his indictment. United
States v. Burr, 25 F. Cas. 30, 33 (C.C.D. Va. 1807). In
making that decision, he considered how the speedy trial
right informed the issue:
The right given by this article must be
deemed sacred by the courts, and the article
should be so construed as to be something
more than a dead letter. What can more
effectually elude the right to a speedy trial
than the declaration that the accused shall be
disabled from preparing for it until an
indictment shall be found against him? It is
certainly much more in the true spirit of the
provision which secures to the accused a
speedy trial, that he should have the benefit
of the provision which entitles him to
compulsory process as soon as he is brought
into court.
Id. Chief Justice Marshall then concluded that “withholding
from a prisoner the process of the court” would lead to
delays, “which are never desirable, which frequently
occasion loss of testimony, and which are often oppressive.”
Id. at 32.
Several early federal and state cases also raised the
concern of lengthy pretrial detention. For example, in 1807,
a Tennessee court held that the right to a speedy trial
mandated the discharge of a prisoner because the resignation
54 UNITED STATES V. OLSEN
of the prosecutor was “no ground to keep the prisoner six
months longer in confinement.” State v. Sims, 1 Tenn. 253,
253 (Tenn. Super. L. & Eq. 1807). Opining on the meaning
of Virginia’s speedy trial right, the General Court of Virginia
noted that the “whole purpose” of the right was to “secure
[the accused] against protracted imprisonment.” Adcock, 49
Va. at 676. And the federal Supreme Court of the Territory
of Montana recognized the right’s core focus on pretrial
incarceration:
Among the principles that adorn the common
law, making it the pride of all English-
speaking people, and a lasting monument to
the noble achievements of liberty over the
encroachments of arbitrary power, are the
following: No man can be rightfully
imprisoned except upon a charge of crime
properly made in pursuance of the law of the
land. No man, when so imprisoned upon a
lawful charge presented in a lawful manner
specifying the crime, can be arbitrarily held
without a trial.
These principles are in accord with the
enlightened spirit of the common law, and
form a part of the framework of the English
Constitution. They are guaranteed and
secured by Magna Charta, the Petition of
Rights, the Bill of Rights, and by a long
course of judicial decision, and they belong
to us as a part of our inheritance from the
mother country. These rights were claimed
by our ancestors in Colonial times, and they
have been engrafted into and secured by our
Constitution, the supreme law of the land[.]
UNITED STATES V. OLSEN 55
United States v. Fox, 3 Mont. 512, 515–16 (1880) (holding
that, at common law, a prosecutor’s neglect or laches
constitutes a denial of a speedy trial).
To be sure, after crossing the Atlantic, the scope of the
right began to expand—guaranteeing a right to speedy
resolution of criminal prosecutions even without pretrial
detention. See, e.g., State v. Buyck, 2 S.C.L. 563, 564 (S.C.
Const. App. 1804) (“[I]t was the duty of the court to take
care that criminal causes should not be unreasonably
protracted or delayed” even for defendants discharged from
confinement on bail.); Adcock, 49 Va. at 677 (noting that the
Virginia’s 1786 speedy trial statute included a “new and
additional provision for a discharge from the crime upon
failure to try at the third [term]”); Fox, 3 Mont. at 517 (“A
person charged with crime, whether in prison or on bail, has
the right to demand diligence on the part of the prosecution,
to the end that he may speedily know whether he is to be
convicted or acquitted.”). But, from its origins, the core right
protected the accused from long detention without an
adjudication of guilt.
C.
Supreme Court jurisprudence confirms the primacy of
the concern against prolonged pretrial detention. Although
lower state and federal courts contemplated the meaning of
the right to a speedy trial for over a century, the issue did not
reach the Court until 1905. See Beavers v. Haubert, 198 U.S.
77 (1905). In that case, the Court described the right as
“necessarily relative,” meaning it is “consistent with delays
and depends upon circumstances.” Id. at 87. While the
speedy trial right “secures rights to a defendant,” the Court
held that it “does not preclude the rights of public justice.”
Id. By framing the right in this way, the Court suggested that
the right permits consideration of societal or governmental
56 UNITED STATES V. OLSEN
objectives. 25 But importantly, the defendant in Beavers was
not incarcerated throughout his charges, so perhaps the
Court was more willing to engage in interest balancing given
that the defendant was not totally deprived of his liberty for
most of his criminal proceedings.
Today, the Court recognizes that the Sixth Amendment’s
primary guarantee is against “undue and oppressive
incarceration prior to trial.” United States v. Ewell, 383 U.S.
116, 120 (1966) (listing the concern for pretrial incarceration
above the speedy trial right’s other interests “to minimize
anxiety and concern accompanying public accusation and to
limit the possibilities that long delay will impair the ability
of an accused to defend himself”). As the Court explained,
“the Speedy Trial Clause’s core concern is impairment of
liberty[.]” United States v. Loud Hawk, 474 U.S. 302, 312
(1986). Moreover, the Court has said, “[t]he speedy trial
guarantee is designed to minimize the possibility of lengthy
incarceration prior to trial,” in addition to protecting the
interest of those on bail and “to shorten[ing] the disruption
of life caused by arrest and the presence of unresolved
criminal charges.” United States v. MacDonald, 456 U.S. 1,
8 (1982). As Justice Thomas has said, “[t]he touchstone of
the speedy trial right, after all, is the substantial deprivation
of liberty that typically accompanies an ‘accusation[.]’”
Doggett v. United States, 505 U.S. 647, 663 (1992) (Thomas,
J., dissenting).
In 1972, the Court introduced the balancing approach
still in use today. See Barker v. Wingo, 407 U.S. 514 (1972).
In denying the defendant’s speedy trial claim, the Court
rejected a bright-line rule, counseling that courts must
instead consider such challenges on an “ad hoc basis.” Id. at
25
See Garcia, supra note 1, at 159.
UNITED STATES V. OLSEN 57
530. As a result, the Court listed factors that should be
considered: “[l]ength of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the
defendant.” Id.
Based on this history and precedent, I see no
constitutional violation here. As I’ve said before, we should
always read precedent “in light of and in the direction of the
constitutional text and constitutional history.” Edmo v.
Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay,
J., dissenting from the denial of rehearing en banc)
(simplified). Given that the speedy trial right’s core historic
concern against prolonged pretrial detention is not at stake
here, I see no reason to depart from modern precedent
permitting some reasonable trial delay. And as I read our
precedent, Olsen’s two-month trial delay is not nearly long
enough to justify dismissal under the Constitution. See
Barker, 407 U.S. at 534 (declining to find a speedy trial right
violation even after a defendant on bail waited four years for
trial). Yet, as stated earlier, this 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. 26
II.
Resolving the constitutional question is only part of this
case. The district court also dismissed Olsen’s indictment
based on the Speedy Trial Act. See 18 U.S.C. § 3161.
Generally, the Act permits district courts to continue a
26
Judge Collins misconstrues my constitutional analysis. Contrary
to his suggestion, I do not say that the Speedy Trial Clause applies only
to those in custody. Collins Dissent 92 n.20. Rather, I simply attempt
to trace the right’s original public meaning and show how that meaning
should guide our interpretation today.
58 UNITED STATES V. OLSEN
defendant’s trial with a finding that the “ends of justice”
outweigh “the best interest of the public and the defendant
in a speedy trial.” Id. § 3161(h)(7)(A). In reaching an ends-
of-justice continuance, the court may consider “[w]hether
the failure to grant such a continuance . . . would . . . likely
. . . make a continuation of such proceeding impossible, or
result in a miscarriage of justice.” Id. § 3161(h)(7)(B)(i).
The panel reversed the district court’s dismissal because
both the “impossib[ility]” and “miscarriage of justice”
exceptions justified a continuance here. Olsen, 995 F.3d at
691–92.
On the “impossib[ility]” exception, I agree with Judge
Collins’s persuasive dissent. See Collins Dissent, Section
III. As the district court found, it was “[c]learly . . . possible”
to hold jury trials as both federal grand juries and state jury
trials had resumed in the area. Olsen, 995 F.3d at 689. Like
Judge Collins, I would conclude no impossibility excused
the delay in Olsen’s trial. 27
But, in the end, I concur in the denial of rehearing
because the panel correctly determined that the district court
should have considered whether the “miscarriage of justice”
exception would have supported a continuance of Olsen’s
trial. Under an evaluation of that exception, courts may
consider the government’s interest in seeking a continuance.
And given the lack of government culpability and the
relatively short two-month continuance at issue, an ends-of-
justice continuance would have been appropriate here.
27
Perhaps Judge Collins is correct that we should have called this
case en banc to fix the erroneous interpretation of the “impossib[ility]”
exception. Ultimately, I opted against that route because I conclude that
the “miscarriage of justice” exception justifies the delay here.
UNITED STATES V. OLSEN 59
The Speedy Trial Act doesn’t define “miscarriage of
justice.” And there is a dearth of caselaw discussing what
constitutes a “miscarriage of justice.” But that is not fatal—
it is illuminating. The lack of bright lines shows that the
phrase is context specific. While its precise meaning may be
amorphous, “miscarriage of justice” is generally defined as
“[a] grossly unfair outcome in a judicial proceeding[.]”
Black’s Law Dictionary (11th ed. 2019). 28 In codifying this
phrase, Congress gave courts some latitude in applying the
ends-of-justice continuation, ensuring that justice is served
even if a continuance does not fit the precise contours of the
other three enumerated factors. See 18 U.S.C.
§ 3161(h)(7)(B)(ii)–(iv). Thus, the miscarriage of justice
exception is broad enough to encompass both the interests of
the defendant and the government in determining whether a
lack of a continuance would lead to a “grossly unfair
outcome.”
The Act’s structure reinforces this view. Other
enumerated factors show that the government’s interest is to
be considered in an ends-of-justice continuance. See id.(balancing the “nature of the prosecution,” the
Government’s ability to secure “continuity of counsel,” and
the “reasonable time” necessary for the Government’s
“effective preparation” for trial). So the factors listed in
§ 3161(h)(7)(B) already presuppose weighing the interests
of both the government and the defendant in considering a
continuance.
And contrary to Judge Collins’s dissent, the “miscarriage
of justice” exception may consider whether the lack of a
28
See also Miscarriage of Justice, Black’s Law Dictionary (5th ed.
1979) (“Decision or outcome of legal proceeding that is prejudicial or
inconsistent with substantial rights of party”).
60 UNITED STATES V. OLSEN
continuance would result in unjust outcomes. Judge Collins
would limit the “miscarriage of justice” exception to address
only “whether more time is needed . . . to ensure . . . the
fairness of the trial proceedings themselves.” Collins
Dissent 90 (emphasis original) (citing cases using the
“miscarriage of justice” exception to ensure fair trial
proceedings, such as granting the government more time to
effectively prepare for trial). But there’s no textual reason
to allow the exception to evaluate only trial proceedings,
rather than also trial outcomes. Indeed, other enumerated
factors already concern the fairness of trial proceedings,
specifically allowing “the Government the reasonable time
necessary for effective preparation.” See 18 U.S.C.
§ 3161(h)(7)(B)(ii), (iv). The “miscarriage of justice”
exception, then, must mean something different from simply
ensuring fair trial proceedings. Tellingly, “miscarriage of
justice” is paired with “impossib[ility].” Id.§ 3161(h)(7)(B)(i). To me, rendering a proceeding
“impossible” is an “outcome.” So it makes sense that the
“miscarriage of justice” and “impossibility” exceptions
would both have an “outcome” component. In short, courts
don’t need to blind themselves to alternative outcomes in
considering the “miscarriage of justice” exception.
Given this understanding, I don’t think the panel was
wrong to consider the “absence of any government
culpability or [the] minimal prejudice to Olsen” in a two-
month continuance of trial to reverse the Speedy Trial Act
violation. Olsen, 995 F.3d at 692. Of course, “Congress did
not intend the ‘ends of justice’ exclusion to be granted as a
matter of course but rather to be used sparingly and only
when necessary.” United States v. Lewis, 980 F.2d 555, 560
(9th Cir. 1992). So we should be careful not to use this case
as a launchpad to expand ends-of-justice continuances.
UNITED STATES V. OLSEN 61
III.
COVID-19 does not put the Constitution on hold. Courts
must always be vigilant in protecting constitutional rights.
Yet, because Olsen was not under pretrial detention, I do not
believe he suffered a deprivation of his Sixth Amendment
speedy trial right. Nor does the Speedy Trial Act compel
dismissal of the charges under proper consideration of the
“miscarriage of justice” exception. Thus, I concur in the
denial of rehearing en banc.
COLLINS, Circuit Judge, with whom FORREST, Circuit
Judge, joins, dissenting from the denial of rehearing en banc:
Even in the midst of a pandemic, there are some things
that, in a constitutional republic, should be all but
unthinkable. See Roman Catholic Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63, 68 (2020) (noting that, “even in a
pandemic, the Constitution cannot be put away and
forgotten”). There are measures that, given the scope and
duration of their infringement on fundamental rights, may be
maintained, if at all, only upon the weightiest of showings.
See id. (stating that, “[b]efore allowing” pandemic-related
measures that “strike at the very heart” of a constitutional
guarantee, the courts “have a duty to conduct a serious
examination of the need for such a drastic measure”). That
category includes ordering the closure of all houses of
worship, 1 prohibiting nearly all in-person instruction at
1
South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716,
718 (2021) (statement of Gorsuch, J., joined by Thomas and Alito, JJ.)
(noting that California had failed “to explain why it cannot address its
legitimate concerns with rules short of a total ban”); id. at 717
62 UNITED STATES V. OLSEN
private schools, 2 broadly forbidding people from gathering
inside homes for constitutionally protected activities such as
Bible studies, 3 and requiring everyone to stay in their homes
except to the extent that the government grants them
permission to leave. 4 This case presents another such
example—the wholesale suspension of criminal jury trials.
Even though the California state courts managed to
conduct numerous criminal jury trials during the same time
period, the Central District of California issued General
Orders that, based on Covid-related concerns, prohibited any
federal criminal jury trials for nearly 14 months. In its
decision in this case, the panel rejected criminal defendant
Jeffrey Olsen’s contention that the Central District’s
suspension of jury trials violated his rights under the Speedy
Trial Act, which implements the Sixth Amendment’s
guarantee of a “speedy and public trial.” We have
previously stated that we are “quick to pay homage to the
Sixth Amendment to the Constitution of the United States
and its implementation, The Speedy Trial Act,” because
“[e]xcept for the right of a fair trial before an impartial jury
(Barrett, J., joined by Kavanaugh, J., concurring in part) (agreeing with
Justice Gorsuch’s statement on this point).
2
Brach v. Newsom, 6 F.4th 904, 927–33 (9th Cir. 2021), vacated on
grant of rehearing en banc, 18 F.4th 1031 (9th Cir. 2021).
3
Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021).
4
South Bay United Pentecostal Church v. Newsom, 959 F.3d 938,
944 n.5 (9th Cir. 2020) (Collins, J., dissenting) (“Even the most ardent
proponent of a broad reading of Jacobson [v. Massachusetts, 197 U.S.
11 (1905),] must pause at the astonishing breadth of [the stay-at-home
order’s] assertion of government power over the citizenry, which in
terms of its scope, intrusiveness, and duration is without parallel in our
constitutional tradition.”).
UNITED STATES V. OLSEN 63
no mandate of our jurisprudence is more important.” See
Furlow v. United States, 644 F.2d 764, 768–69 (9th Cir.
1981). To be sure, the panel here paid lip service to “the
importance of the right to a speedy and public trial,” which
it acknowledged is “among the most important protections
guaranteed by our Constitution” and “is not one that may be
cast aside in times of uncertainty.” United States v. Olsen,
995 F.3d 683, 695 (9th Cir. 2021). But then, without ever
considering whether there was any way in which criminal
jury trials could have been conducted during the pandemic—
as the state courts managed to do—the panel proceeded to
uphold the Central District’s lengthy suspension of jury trials
by invoking overall public health concerns: “[S]urely 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 693.
“Stemming the spread of COVID-19 is unquestionably a
compelling interest.” Diocese of Brooklyn, 141 S. Ct. at 67.
But even weighty claims of danger to public health must be
measured against the demands of the law, and here the
relevant provisions of the Speedy Trial Act are fairly
stringent. Applying those standards, the district court held
that, almost six months into the pandemic, the Government
had failed to show that a further continuance of Olsen’s trial
was justified. United States v. Olsen, 494 F. Supp. 3d 722(C.D. Cal. 2020). Indeed, the court expressed incredulity
that the suspension of jury trials had gone on for so long,
despite the wide range of other activities occurring in the
same community:
Quite frankly, the Court is at a loss to
understand how the Central District
64 UNITED STATES V. OLSEN
continues to refuse to resume jury trials in the
Orange County federal courthouse. The
Internal Revenue Service, the Social Security
Administration, and other federal agencies in
Orange County are open and their employees
are showing up for work. Police, firefighters,
and other first responders in Orange County
are all showing up for work. Hospitals and
medical offices in Orange County are open to
patients and the medical professionals are
showing up for work. Grocery stores,
hardware stores, and all essential businesses
in Orange County are open and their
employees are showing up for work. State
courts in Orange County are open and
holding jury trials. Orange County
restaurants are open for outdoor dining and
reduced-capacity indoor dining. Nail salons,
hair salons, body waxing studios, massage
therapy studios, tattoo parlors, and pet
groomers in Orange County are open, even
indoors, with protective modifications.
Children in Orange County are returning to
indoor classes at schools, with modifications.
Even movie theaters, aquariums, yoga
studios, and gyms in Orange County are open
indoors with reduced capacity. Yet the
federal courthouse in Orange County
somehow remains closed for jury trials. The
Central District’s refusal to resume jury trials
in Orange County is indefensible.
Id. at 731. Because the district court refused to grant a
further continuance of Olsen’s trial, that trial did not occur
within the time frame specified by the Speedy Trial Act, and
UNITED STATES V. OLSEN 65
the district court dismissed the indictment with prejudice.
Id. at 734.
Confident that the pandemic “surely” justified the
Central District’s extended “suspen[sion] [of] jury trials in
the interest of public health,” the panel reversed the district
court and held that Olsen’s trial should have been continued,
based on Covid-related concerns, under the Speedy Trial
Act’s “ends of justice” exception.” 995 F.3d at 695. But in
its determination to uphold this unprecedented and
disturbing suspension of a crucial constitutionally-based
right, the panel’s decision egregiously misinterpreted the
Act’s ends-of-justice exception in a way that does serious
damage to this critically important statute. These errors,
which fundamentally alter and misunderstand how the
statute works, have troubling implications that will extend
well beyond the pandemic. Under any proper understanding
of the Speedy Trial Act, the district court here correctly
concluded that the Government had failed to show that a
further continuance of Olsen’s trial was consistent with the
Act’s standards. And because Olsen’s trial did not take place
within the time specified in the Act, the dismissal of Olsen’s
indictment was mandatory, although the district court had
discretion to decide whether that dismissal should be with or
without prejudice. See 18 U.S.C. § 3162(a)(2). I agree with
the panel’s alternative ruling that the district court abused
that discretion in dismissing Olsen’s indictment with
prejudice. See 995 F.3d at 694–95. But the panel’s decision
did considerable damage to the Speedy Trial Act when it
held that Olsen’s trial should have been continued, that there
was no violation of the Act, and that Olsen’s indictment
should not be dismissed without prejudice.
66 UNITED STATES V. OLSEN
We should not have let the Speedy Trial Act be counted
among Covid’s latest casualties. I respectfully dissent from
our refusal to rehear this case en banc.
I
A
On July 6, 2017, Jeffrey Olsen was indicted on one count
of making a false statement on an application to obtain a
federal controlled substance registration, see 21 U.S.C.
§ 843(a)(4)(A), and 34 counts of unlawfully prescribing and
distributing, as a licensed physician, various controlled
substances, see id., § 841(a)(1). At his arraignment on July
11, 2017, Olsen pleaded not guilty, posted bond, and was
released from custody. His trial was initially set for
September 5, 2017, which is within the 70-day window
prescribed by the Speedy Trial Act. See 18 U.S.C.
§ 3161(c)(1) (“In any case in which a plea of not guilty is
entered, the trial of a defendant charged in an information or
indictment with the commission of an offense shall
commence within seventy days from the filing date (and
making public) of the information or indictment, or from the
date the defendant has appeared before a judicial officer of
the court in which such charge is pending, whichever date
last occurs.”).
The Speedy Trial Act recognizes that there may be
grounds to delay the trial beyond the default 70-day window,
and it therefore sets forth eight specific grounds for
excluding certain periods of time from the calculation of the
70-day period. 18 U.S.C. § 3161(h)(1)–(8); United States v.
Daychild, 357 F.3d 1082, 1090 (9th Cir. 2004). Among
these grounds are the “unavailability of the defendant or an
essential witness,” see 18 U.S.C. § 3161(h)(3)(A); “other
proceedings concerning the defendant,” including pretrial
UNITED STATES V. OLSEN 67
motions or interlocutory appeals, id. § 3161(h)(1); mental or
physical incapacity of the defendant, id. § 3161(h)(4); or
delays associated with a codefendant with whom the
defendant is joined for trial, id. § 3161(h)(6). One of the
eight exceptions is a residual “ends of justice” exception that
authorizes the exclusion of time from the 70-day clock when
a continuance is granted by a judge “on the basis of his
findings that the ends of justice served by taking such action
outweigh the best interest of the public and the defendant in
a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). Invoking that
exception, Olsen sought (with the Government’s
concurrence) the following five continuances of his trial, all
of which were granted:
• Olsen requested the exclusion of the 148 days from
September 5, 2017 until January 30, 2018 on the
ground that, in light of the voluminous discovery
produced by the Government (“31,181 pages of
documents and files”), his counsel’s schedule, and
the need to prepare for trial “in the event that a
pretrial resolution does not occur,” a “failure to grant
the continuance will deny him continuity of counsel
and adequate representation.”
• Noting that the Government’s discovery had
ballooned to “approximately 197,343 pages of
documents and files,” including “text messages,
pictures, and audio and video recordings,” Olsen
relied on similar grounds in requesting the exclusion
of the 196 days from January 30, 2018 through
August 14, 2018. 5
5
Although the court’s order states that the time period is “inclusive”
of the starting and ending dates, the same was true of the prior order, and
68 UNITED STATES V. OLSEN
• Olsen requested the exclusion of the 102 days from
August 14, 2018 through December 4, 2018 on the
grounds that defense counsel needed additional time
to review the discovery and prepare for trial, which
included “finding an expert.”
• For essentially the same grounds as stated in the prior
request, Olsen requested the exclusion of the 196
days from December 4, 2018 until June 18, 2019.
• After Olsen’s retained counsel moved to withdraw in
February 2019 based on “serious differences of case
strategy that cannot be reconciled,” the court relieved
counsel and appointed the Federal Public Defender
as counsel for Olsen. Based on this change of
counsel, Olsen requested the exclusion of the 140
days from June 18, 2019 through November 5, 2019.
In August 2019, Olsen sought a sixth continuance, but
the Government opposed this request. Olsen’s counsel
explained that, upon review of the Government’s “41 GB”
of discovery, including “roughly 77,000 files,” she
discovered that “the majority of files were either not copied
or corrupted.” She requested and received replacement files,
and she assigned a paralegal to assist in “uploading and
cataloguing all files to the CaseMap software.” Because the
nearly 16,000 pages of handwritten prescriptions were “not
easily converted to a searchable format,” she explained that
these required individual review and processing. She also
stated that she needed more time to review the Government’s
expert disclosures and to identify and retain experts of her
own. She further noted that the Government itself spent
a day covered by both orders (e.g., January 30, 2018) can only be
excluded once.
UNITED STATES V. OLSEN 69
more than six years investigating Olsen before he was
indicted, and she argued that her requests for additional time
were warranted in the context of this “document-heavy
case.” The court held a hearing on this request, during which
it expressed disappointment in itself for having “allowed this
case to be continued so much.” In response, the prosecutor
explained that:
“[P]art of the reason why there has been a
number of continuances was because I was
having a fairly forthright conversation—or
communications with the prior defense
counsel. And her belief and my belief was
that Mr. Olsen would—will ultimately plead
guilty. And that entailed in part [a] reverse
proffer that the government conducted with
Mr. Olsen.
After hearing from both sides, the court granted the
requested continuance and, invoking the ends-of-justice
exception, it excluded from the Speedy Trial Act’s 70-day
clock the 182 days from November 5, 2019 through May 5,
2020.
Based on the ends-of-justice exception, Olsen
successfully requested two further continuances, with the
Government’s concurrence, as follows:
• Due to scheduling conflicts of defense counsel, and
the disruption to court operations resulting from the
pandemic, Olsen requested exclusion of the 77 days
from May 5, 2020 through July 21, 2020.
• Based on essentially the same grounds, Olsen
requested exclusion of the 84 days from July 21,
2020 through October 13, 2020.
70 UNITED STATES V. OLSEN
B
In August 2020, the court called a status conference after
it learned that Olsen would not agree to any further
continuances of the trial date. 6 At that conference, the
Government stated that it would file an opposed application
for a continuance. In its ensuing application, the
Government moved to continue the trial from October 13,
2020 to December 1, 2020 and to exclude the additional 49
days under the ends-of-justice exception. The gravamen of
the application was that “conducting a jury trial during a
pandemic without district-wide protocols for conducting
jury trials may jeopardize the health of prospective jurors,
witnesses, defendant, trial counsel, and court personnel.”
Olsen opposed the application, arguing that “the courts have
had several months to address” the pandemic and that a
further blanket and “functionally open-ended” suspension of
trials could not be justified.
On September 2, 2020, the district court denied the
Government’s application, concluding that, in light of the
many criminal jury trials being conducted in the nearby
Orange County Superior Court and the successful
conducting of grand jury proceedings in the federal
courthouse, the Government had not shown that it was
impossible to conduct a trial. See 18 U.S.C.
§ 3161(h)(7)(B)(i) (stating that one factor to consider, under
the ends-of-justice exception, is whether “the failure to grant
such a continuance in the proceeding would be likely to
make a continuation of such proceeding impossible”).
Accordingly, the court requested that the Chief Judge “direct
6
The panel is therefore simply wrong in insinuating that the
objection to the extension originated with the district court rather than
with Olsen. See Panel Concurrence at 30–31.
UNITED STATES V. OLSEN 71
the Jury Department to summon jurors,” but the Chief Judge
denied that request the very next day in a written order that
relied only on the then-applicable General Order that
“suspended jury trials until further notice.”
On September 15, 2020, Olsen preemptively moved for
dismissal of his indictment on the basis that his Speedy Trial
Act and Sixth Amendment rights were violated by the
imminent failure to bring him to trial within the Speedy Trial
Act’s timeframe, which would expire on October 27, 2020.
Because dismissal of the indictment, either with or without
prejudice, is the mandatory remedy under the Speedy Trial
Act for a failure to timely bring the defendant to trial, see 18
U.S.C. § 3162(a)(2), the Government’s opposition argued
only that (1) the motion was premature until the time
actually ran out on October 27, and (2) any dismissal should
be without prejudice. The district court granted the motion
to dismiss the indictment, with prejudice, effective on the
first day after the Speedy Trial Act expired, i.e., October 28,
2020. Olsen, 494 F.Supp.3d at 733–34.
C
The Government appealed the dismissal, and the panel
reversed and remanded, directing that Olsen’s indictment be
reinstated, that an appropriate continuance be granted, and
that the case be set for trial. Olsen, 995 F.3d at 695. The
panel relied on three grounds for concluding that the
Government’s requested continuance under the ends-of-
justice exception should have been granted.
First, the panel held that the district court had
erroneously proceeded on the assumption that “literal
impossibility is the relevant standard for an ends of justice
continuance.” 995 F.3d at 690. The panel concluded that,
under a proper understanding of the Act’s reference to
72 UNITED STATES V. OLSEN
whether a proceeding would be “impossible” absent a
continuance, the Government’s requested continuance was
warranted. According to the panel, that was true because, in
light of the General Order’s complete prohibition of jury
trials, a failure to grant the continuance “did make ‘a
continuation of [Olsen’s] proceeding impossible.’” Id. at
691 (quoting 18 U.S.C § 3161(h)(7)(B)(i)). Second, the
panel held that, because the failure to grant the requested
continuance would lead to dismissal of the indictment, the
result would be a “miscarriage of justice.” Id. at 691–92.
Third, the panel concluded that the district court had erred
by failing to consider a set of non-statutory factors that, in
light of the pandemic, the panel thought that it should have
addressed. Id. at 692. 7
II
The Speedy Trial Act’s ends-of-justice exception
provides that the “period of delay resulting from a
continuance” is excluded from the Act’s 70-day clock “if the
judge granted such continuance on the basis of his finding
that the ends of justice served by taking such action outweigh
the best interest of the public and the defendant in a speedy
trial.” 18 U.S.C. § 3161(h)(7)(A). “Realizing that broad
discretion would undermine the mandatory time limits of the
Act, Congress intended that this provision be ‘rarely used’
and enumerated four factors to be considered by the judge in
granting an ends of justice continuance.” United States v.
7
The panel also alternatively held that, even if the continuance was
properly denied, the district court abused its discretion by dismissing the
indictment with prejudice rather than without prejudice. 995 F.3d at
693–95. I agree with this alternative holding; the indictment should have
been dismissed without prejudice rather than with prejudice. See infra
at 92–94.
UNITED STATES V. OLSEN 73
Nance, 666 F.2d 353, 355 (9th Cir. 1982) (citation omitted). 8
These factors, however, are not exclusive. See 18 U.S.C.
8
Specifically, the statute provides:
The factors, among others, which a judge shall
consider in determining whether to grant a
continuance under subparagraph (A) of this
paragraph in any case are as follows:
(i) Whether 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.
(ii) Whether the case is so unusual or so complex,
due to the number of defendants, the nature of the
prosecution, or the existence of novel questions of
fact or law, that it is unreasonable to expect
adequate preparation for pretrial proceedings or
for the trial itself within the time limits established
by this section.
(iii) Whether, in a case in which arrest precedes
indictment, delay in the filing of the indictment is
caused because the arrest occurs at a time such
that it is unreasonable to expect return and filing
of the indictment within the period specified in
section 3161(b), or because the facts upon which
the grand jury must base its determination are
unusual or complex.
(iv) Whether the failure to grant such a
continuance in a case which, taken as a whole, is
not so unusual or so complex as to fall within
clause (ii), would deny the defendant reasonable
time to obtain counsel, would unreasonably deny
the defendant or the Government continuity of
counsel, or would deny counsel for the defendant
or the attorney for the Government the reasonable
74 UNITED STATES V. OLSEN
§ 3161(h)(7)(B) (stating that, in applying the ends-of-justice
exception, the court should consider the four statutory
factors, “among others”). In challenging the denial of its
requested continuance, the Government relied on only the
first of the four statutorily enumerated factors, namely:
Whether 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.
18 U.S.C. § 3161(h)(7)(B)(i). 9
The panel seriously misconstrued both prongs of this
statutory factor, namely, (1) what it means to say that “the
failure to grant such a continuance in the proceeding would
be likely to make a continuation of such proceeding
impossible”; and (2) what counts as “a miscarriage of
justice” so as to justify a continuance. 18 U.S.C.
§ 3161(h)(7)(B)(i). The panel also improperly diluted both
prongs through its use of novel non-statutory considerations.
I will discuss each of these prongs separately.
time necessary for effective preparation, taking
into account the exercise of due diligence.
18 U.S.C. § 3161(h)(7)(B).
9
Although several of the other factors—such as those focused on
adequate preparation time and continuity of counsel—were implicated
in some of the earlier continuances that were granted in Olsen’s case,
they provided no support for the Government’s final requested
continuance. By that point, all parties had had ample time to prepare.
UNITED STATES V. OLSEN 75
III
In concluding that the district court’s denial of a
continuance would make proceeding with a trial
“impossible” within the meaning of § 3161(h)(7)(B)(i), the
panel erred in three critical respects.
A
In finding that the impossibility standard was met here,
the panel reasoned that, “[b]ecause not granting the
government’s continuance meant that the Speedy Trial Act
clock would necessarily expire before Olsen could be
brought to trial, it follows that the district court’s ‘failure to
grant’ an ends of justice continuance in this case did make ‘a
continuation of [Olsen’s] proceeding impossible.’” 995 F.3d
at 691. Of course, the only reason why the Speedy Trial Act
clock would expire after a denial of the continuance is that
the Central District’s then-applicable General Order forbade
any jury trials from taking place during the remainder of the
time left on that clock. The panel’s opinion thus treated the
General Order itself as an externality that rendered a trial
“impossible,” thereby satisfying the statutory standard. See
995 F.3d at 691; see also id. at 695 (“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,
76 UNITED STATES V. OLSEN
attorneys, and court personnel.”). The panel’s analysis is
deeply flawed. 10
By allowing the Central District’s General Order to serve
as the source of the impossibility that justifies a continuance,
the panel’s analysis rests on a bootstrap argument that
permits a wholesale evasion of the impossibility standard. 11
It should go without saying that, in applying the Speedy Trial
Act, the analysis must turn on whether the Act’s standard for
impossibility is met, regardless of what any General Order
says. If the asserted source of the impossibility is a General
Order of the court itself, then that order must be subject to,
and comply with, the strictures of the Act. See FED. R. CRIM.
P. 57(a)(1), (b) (local rules and orders must be “consistent
10
The panel’s concurrence chastises me for failing to mention “the
fact that the Circuit’s Judicial Council reviewed the Central District’s
General Order, thereafter approving its declaration of a judicial
emergency.” Panel Concurrence at 30. The cited Judicial Council order
only approves the declaration of a “judicial emergency” under the
separate provisions of 18 U.S.C. § 3174, which has no applicability here.
See In re Approval of Jud. Emergency Declared in the Cent. Dist. of Cal.,
955 F.3d 1140 (9th Cir. Jud. Council 2020); see also infra at 91 n.19.
That order did not review or approve the Central District’s open-ended
suspension of criminal jury trials. Indeed, the Judicial Council has no
role in making case-specific Speedy Trial Act determinations under
§ 3161(h).
11
In its concurrence in the denial of rehearing en banc, the panel
expressly denies that it has relied on any such bootstrap argument but
then—without apparent awareness of the self-contradiction—the panel’s
explanation proceeds to make the exact same bootstrap argument. See
Panel Concurrence at 35–36. Thus, in explaining why “not granting the
government’s [requested] continuance rendered trial impossible,” the
panel again reaffirms that the impossibility was “due to General Order
20-09’s suspension of criminal jury trials.” Id.; see also id. at 37 n.3
(explaining that the Government had shown that “the General Orders
. . . prevented jury trials”) (emphasis added).
UNITED STATES V. OLSEN 77
with . . . federal statutes” and “federal law”). But the panel
opinion never even considered whether the General Order
made findings sufficient to establish that a trial was
“impossible” within the meaning of the Act, nor did it
address whether the General Order otherwise complied with
the Act’s specific standards.
Contrary to what the panel’s concurrence in the denial of
rehearing en banc now belatedly contends, see Panel
Concurrence at 33–35, it is quite clear that the applicable
General Order here did not rest on a proper application of
Speedy Trial Act standards. The panel’s contrary
assumption is at war with the language of the Speedy Trial
Act and with settled precedent construing it. Here is the
relevant General Order’s analysis that, under the panel
opinion, see 995 F.3d at 695, substitutes for an adequate
application of Speedy Trial Act standards:
The Center for Disease Control and
Prevention has warned that “in the coming
months, most of the U.S. population will be
exposed to this virus.” The COVID-19 rates
of infection, hospitalizations and deaths have
significantly increased in the Central District
of California in the last thirty days such that
holding jury trials substantially increases the
chances of transmitting the Coronavirus. The
Court concludes that conducting jury trials
would also likely place prospective jurors,
defendant, attorneys, and court personnel at
unnecessary risk. Therefore, the Court finds
that suspending criminal jury trials in the
Central District of California because of the
increase in reported COVID-19 infections,
hospitalizations, and deaths serves the ends of
78 UNITED STATES V. OLSEN
justice and outweigh the interests of the
public and the defendants in a speedy trial.
Gen. Order No. 20-09 ¶ 6 (C.D. Cal. Aug. 6, 2020)
(emphasis added). 12 The mere recital of the Speedy Trial
Act’s ultimate standard does not establish that the General
Order reflects a proper application of the Act’s standards. In
particular, three essential aspects of any application of the
Act’s ends-of-justice exception are missing.
First, the “suspending” of jury trials in the General Order
was entirely open-ended, even though, under long-settled
Ninth Circuit precedent, the Act requires than any “‘ends of
justice’ continuance be specifically limited in time and that
there be findings supported by the record to justify each
‘ends of justice’ continuance.” United States v. Jordan, 915
F.2d 563, 565 (9th Cir. 1990) (emphasis added). 13
12
The panel faults me for not quoting the General Order’s
“Whereas” clauses, which refer in general terms to the growing number
of Covid cases and deaths and to the guidance issued by the Centers for
Disease Control and Prevention. See Panel Concurrence at 34. But these
clauses do not meaningfully add to the above-quoted analysis, nor do
they address the various respects in which the General Order does not
match up with settled Speedy Trial Act standards.
13
This Order differs from the initial General Order issued at the
onset of the pandemic in March 2020, which specified a fixed 30-day
exclusion, subject to the order of the individual judge in the case. See
Amended Gen. Order 20-02 ¶ 4 (C.D. Cal. Mar. 17, 2020). Such an
across-the-board 30-day exclusion is arguably authorized by the very
limited temporary emergency authority set forth in 18 U.S.C. § 3174(e),
but any further such exclusion would have to be individually
implemented in each case. See infra at 79. In any event, in Olsen’s case,
that particular 30-day time period had already been excluded for other
reasons, and further exclusions of time, early in the pandemic, were
made in his case (without objection) in part on Covid-related grounds.
See supra at 69.
UNITED STATES V. OLSEN 79
Second, because the General Order is just that—a
general order—it does not, and cannot, substitute for the
case-specific findings that are required to be made under
§ 3161 of the the Act. Zedner v. United States, 547 U.S. 489,
509 (2006) (noting that § 3161(h)(7) “demands on-the-
record findings and specifies in some detail certain factors
that a judge must consider in making those findings”). 14
Specifically, after reciting the standard for an ends-of-justice
continuance, the Act expressly states that “[n]o such period
of delay” under the ends-of-justice exception “shall be
excludable under this subsection unless the court sets forth,
in the record of the case, either orally or in writing, its
reasons for finding that the ends of justice served by the
granting of such continuance outweigh the best interests of
the public and the defendant in a speedy trial.” 18 U.S.C.
§ 3161(h)(7)(A) (emphasis added). As flawed as the panel’s
opinion is, the panel concurrence would make things even
worse by explicitly endorsing the remarkable proposition
that the judges of a district court, by general order, may issue
blanket, district-wide exclusions of time under the ends-of-
justice exception of the Speedy Trial Act. See Panel
Concurrence at 33–35, 40–41. That view directly
contravenes the Speedy Trial Act’s requirement of
individualized case-specific consideration, and it also
effectively nullifies the carefully drawn limits of the Act’s
separate provision for district-wide relief in emergency
situations. See 18 U.S.C. § 3174(b) (stating that, upon
declaration of a qualifying judicial emergency within a
district, the 70-day clock may be increased to 180 days for
subsequently filed indictments).
14
At the time that Zedner was decided, the ends-of-justice exception
was contained in § 3161(h)(8). In 2008, Congress struck subsection
(h)(5) and renumbered the remaining subsections. See Pub. L. No. 110-
406 § 13(2)–(3), 122 Stat. 4291, 4294 (2008).
80 UNITED STATES V. OLSEN
Third, there is no indication in the General Order that its
conclusion rested on a consideration of the relevant statutory
factors that “a judge shall consider in determining whether
to grant a continuance” under the ends-of-justice exception.
18 U.S.C. § 3161(h)(7)(B) (emphasis added); see also
Zedner, 547 U.S. at 509. In particular, the General Order
was entered without properly considering or applying the
impossibility standard of § 3161(h)(7)(B)(i). The order
merely states that proceeding with criminal jury trials would
“likely place prospective jurors, defendant, attorneys, and
court personnel at unnecessary risk.” See Gen. Order 20-09
¶ 6 (emphasis added). But that unadorned statement says
nothing about whether the court had considered whether
there were any available measures that might mitigate those
risks, such that proceeding with a trial would not be
“impossible.” 18 U.S.C. § 3161(h)(7)(B)(i). Instead, the
order simply declared criminal jury trials—a core
constitutional right—to be, for an indefinite period,
“unnecessary” and dispensable.
For all of these reasons, the panel opinion was quite
wrong in effectively allowing the General Order to serve,
without more, as a sufficient justification for finding that
“the failure to grant . . . a continuance” in Olsen’s trial
“would be likely to make a continuation of such proceeding
impossible.” 18 U.S.C. § 3161(h)(7)(B)(i). The General
Order did not itself meet the Act’s standards, and it therefore
cannot excuse non-compliance with those standards in an
individual case.
B
Because the panel improperly relied on the General
Order to establish that trials were “impossible,” the panel
failed to articulate or apply any standard of its own for
determining whether a trial was “impossible” within the
UNITED STATES V. OLSEN 81
meaning of this statutory factor. Thus, beyond rejecting the
strawman argument that “literal impossibility” serves as the
“relevant standard,” 995 F.3d at 690 (emphasis added), 15 the
panel failed to articulate any standard for assessing how
much practical difficulty would satisfy the Act’s
“impossible” factor. This, too, was error, because under any
reasonable construction of that factor, the district court
correctly concluded that it was not met here.
In ordinary usage, the term “impossible” has a range of
meanings that extend from “incapable of being or of
occurring” (which is closer to the literal impossibility
standard that the panel rejects) to “extremely and almost
insuperably difficult under the circumstances.” Impossible,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF
THE ENGLISH LANGUAGE 1136 (1981). The latter definition,
15
Contrary to what the panel suggests, the district court did not
ignore logistical or practical constraints. In its analysis of the
impossibility factor, the district court specifically focused on whether
conducting a trial would be a “physical and logistical impossibility” or
an “actual” impossibility. See Olsen, 494 F. Supp. 3d at 722, 727–28 &
n.4. The panel concurrence’s similar suggestion that the district court
ignored “logistical problems,” see id. at 37, is flatly belied by the district
court’s opinion. See, e.g., Olsen, 494 F.Supp.3d at 729 (noting the
protective measures adopted by the Orange County Superior Court,
including “staggering times for juror reporting, trial start, breaks, and
concluding for the day, seating jurors during trial in both the jury box
and the audience area, marking audience seats, and using dark
courtrooms as deliberation rooms,” as well as “regularly disinfect[ing]
the jury assembly room and restrooms, provid[ing] facial coverings,
us[ing] plexiglass shields in courtrooms, and requir[ing] trial participants
to use gloves to handle exhibits”). And the panel concurrence’s
insinuations against the district court’s impartiality, see, e.g., id. at 31
(questioning court’s “misguided motive”); id. at 37 n.3 (asserting that it
is “clear that the district court had made up its mind” and would not
consider any showing by the Government), are refuted by that court’s
lengthy and considered published opinion.
82 UNITED STATES V. OLSEN
of course, avoids the panel’s strawman argument while
respecting Congress’s clear choice of a term that is much
more demanding than potential alternatives such as
“impracticable,” “inconvenient,” or, indeed, “unsafe.”
Moreover, as the panel concedes in its concurrence, see
Panel Concurrence at 42–43, this understanding of
“impossible” is consistent with the two cases cited by the
panel opinion that apply this factor. See Furlow, 644 F.2d at767–69 (“relatively brief” two-week delay associated with
eruption of Mt. St. Helens in 1980 justified ends-of-justice
continuance in light of the “paralyzing impact” in the
vicinity of the courthouse, “affecting the abilities of jurors,
witnesses, counsel, [and] officials to attend the trial”);
United States v. Paschall, 988 F.2d 972, 975 (9th Cir. 1993)
(eight-day delay due to an inability to form a grand jury
quorum because of a major snowstorm fell within the ends-
of-justice exception). Here, the district court did not abuse
its discretion in concluding that, although the sort of extreme
and almost insuperable difficulty described in those cases
may have been present at the initial outset of the pandemic
in spring 2020, there was an insufficient basis to conclude
that the same was true in October 2020.
As the district court noted, “grand juries have been
convening for months in the same federal courthouse in
Orange County where [Olsen’s] trial would take place and
state courts just across the street from that federal courthouse
are conducting criminal jury trials.” Olsen, 494 F. Supp. 3d
at 724. The district court observed that grand juries must be
comprised of at least sixteen people, and such juries had
gathered in the very same courthouse to hear from witnesses,
evaluate evidence, and deliberate with one another. Id. at
728–29. Meanwhile, the Orange County Superior Court had
conducted “82 criminal jury trials and 4 civil jury trials”
from June 2020 to September 2020. Id. at 729. Indeed, more
UNITED STATES V. OLSEN 83
recent statistics confirm that state courts in the counties
comprising the Central District ultimately conducted over
500 jury trials by March 2021. In light of these facts, it is
clear that conducting federal criminal jury trials in Orange
County was not “impossible,” under any reasonable
understanding of that term.
In its concurrence, the panel falls back on the generalized
statement that “the unprecedented danger to health and
safety presented by the pandemic, particularly in its earlier
days when Olsen sought to try his case, cannot be
overstated.” See Panel Concurrence at 34 (emphasis added).
This misstates the record. Olsen notably did not contend that
continuances were unwarranted in the early days of the
pandemic, when uncertainties were very high. On the
contrary, he expressly stipulated to continuing his trial from
May 2020 until October 2020 based in part on the disruption
to court operations caused by the pandemic. See supra at 69.
But by late summer, after the state courts had managed to
resume conducting jury trials, Olsen objected that a further
continuance was unjustified. At that point, it was no longer
true that “the unprecedented danger to health and safety
presented by the pandemic . . . cannot be overstated.” See
Panel Concurrence at 34 (emphasis added). The existence
of “risks” to public safety, even significant ones, does not
justify the cancellation of jury trials absent some sufficient
basis for concluding that, as a practical matter, there are no
feasible mitigation measures that would allow a trial to go
forward. 16 That showing has not been made on this record;
indeed, it was not even attempted. And the panel opinion
16
Accordingly, the panel concurrence is flatly incorrect in asserting
that “the dissent takes issue with considering the safety of the public,
court staff, and counsel in an impossibility analysis.” See Panel
Concurrence at 43. Of course it is a consideration, but under the proper
standards.
84 UNITED STATES V. OLSEN
did not require such a showing, but instead held that, to
justify a continuance, it was sufficient that the General Order
simply cited the “risk” to “health and safety” that trials
would present. Olsen, 995 F.3d at 695.
Moreover, the panel further watered down the Speedy
Trial Act’s demanding impossibility standard by relying on
the panel’s enumeration of seven non-statutory factors that
it said the district court should have considered in deciding
whether to grant a continuance. 995 F.3d at 692. There is
no doubt that the four statutory factors for applying the ends-
of-justice exception are not exhaustive, because they are
introduced by the phrase “among others.” 18 U.S.C.
§ 3161(h)(7)(B). But the fact that other factors may also be
considered does not provide a license for rewriting the
statutory factors in order to evade their limits. See Bloate v.
United States, 559 U.S. 196, 208 (2010) (making this same
point with respect to the non-exclusive list of “proceedings
concerning the defendant” in § 3161(h)(1): “That the list of
categories is illustrative rather than exhaustive in no way
undermines our conclusion that a delay that falls within the
category of delay addressed by subparagraph (D) is
governed by the limits in that subparagraph.”); see also
California ex rel. Sacramento Metro. Air Quality Mgmt.
Dist. v. United States, 215 F.3d 1005, 1013 (9th Cir. 2000)
(“It is fundamental that a general statutory provision may not
be used to nullify or to trump a specific provision.”); see also
Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222,
228-29 (1957) (“Specific terms prevail over the general in
the same or another statute which otherwise might be
controlling.” (citation and internal quotation marks
omitted)). But that is effectively what the panel did here.
The panel identified the following seven non-statutory
factors that it said the district court should have considered
UNITED STATES V. OLSEN 85
in deciding whether to grant the Government’s-requested
continuance “in the context of the pandemic”:
(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.
995 F.3d at 692–93. However, the panel conspicuously did
not remand for the district court to apply these factors;
instead, it remanded with explicit instructions to “grant” an
appropriate continuance and set a new trial date. Id. at 695.
The panel thus must be understood to have applied these
factors itself. But the only one of them that even plausibly
addresses “whether conducting trial would be physically
possible” is the last factor, i.e., “whether the district court
has the ability to safely conduct a trial,” and that is the only
one of these factors that the panel opinion actually
mentioned in the impossibility portion of its analysis. Id. at
693. 17 The panel concurrence likewise affirmatively
17
The panel opinion adverted to several of the remaining non-
statutory factors in its separate analysis of whether failing to grant a
continuance would result in a “miscarriage of justice.” See Olsen, 995
86 UNITED STATES V. OLSEN
confirms that, in its view, this “safety” factor provides a
“guiding principle[] for assessing the impossibility factor.”
See Panel Concurrence at 39; see also id. at 43 (expressly
linking the panel’s “seventh factor,” concerning “safety,”
with the “impossibility analysis”). Indeed, the panel
concurrence goes even further and suggests that non-
statutory factors such as safety should be weighed against a
finding, under the statutory factor, that “holding trial would
be physically possible.” Id. at 37–38. And because the panel
did not have enough confidence that trials could be
conducted “safely,” the panel concluded that a continuance
was warranted. Olsen, 995 F.3d at 693.
The panel’s analysis effectively replaced the statute’s
demanding statutory factor with a much more flexible non-
statutory factor: instead of requiring a showing that
conducting a trial would be “impossible”—i.e., extremely
and almost insuperably difficult under the circumstances, see
supra at 81—the panel held that it is sufficient to show that
there is “unnecessary risk” as to whether a trial can be
conducted “safely.” The statute’s use of the term
“impossible” confirms Congress’s judgment that deferring a
criminal jury trial based on logistical considerations must be
reserved for situations in which there are no feasible
arrangements that would make a trial possible. By creating
a much more flexible “safety” exception to the Speedy Trial
Act, the panel improperly invoked a non-statutory factor to
evade the rigorous standard that Congress wrote in the
overlapping statutory factor. See Bloate, 559 U.S. at 208–
09. This rewrites the Speedy Trial Act and dilutes its
protections.
F.3d at 692. I address the panel’s analysis of that issue below. See infra
at 89–94.
UNITED STATES V. OLSEN 87
C
In addition to watering down the Act’s impossibility
standard, the panel opinion committed a third clear error by
shifting the burden of proof on the issue of impossibility (or
safety) from the Government to Olsen. The panel summarily
dismissed the record evidence showing that the California
state courts were conducting criminal jury trials, stating that,
“just because state courts are holding jury trials does not
mean that they are necessarily holding them safely.” 995
F.3d at 693 n.10. The absence of any evidence in the record
on this safety issue, the panel held, was dispositive on this
point: “Nothing in the record indicates that the Central
District was able to hold a jury trial safely in October 2020,
when Olsen’s case was set for trial.” Id. This is completely
backwards. Because the Government was the one moving
for a continuance, it had the burden to establish that the
continuance was justified under the Act. See, e.g., United
States v. Burrell, 634 F.3d 284, 287 (5th Cir. 2011) (“[T]he
Government bears the burden of establishing the
applicability of this [ends of justice] exclusion as ‘the trial
court [did not] independently recognize[ ] the need for such
a delay’ and the Government is ‘the party seeking to benefit
from the delay.’” (citations omitted)). But rather than hold
that the Government—the moving party in seeking a
continuance here—had thereby failed to carry its burden of
proof to justify the continuance, the panel held that the lack
of such evidence weighed in favor of a continuance. Id.The panel concurrence vigorously denies that the panel
shifted the burden of proof but then, in the very next
sentence, it confirms that the panel did just that. The
concurrence criticizes the district court, stating that,
“[w]ithout record support, the district court announced that
it was possible to move forward with trial.” See Panel
88 UNITED STATES V. OLSEN
Concurrence at 37 n.3 (emphasis added). But if there was
no “record support” on this issue, then that necessarily
means that the party who had the burden of proof failed to
carry it. Because the Government requested the extension,
it had the burden of proof and failed to carry it. By instead
treating the absence of proof as a factor in favor of a
continuance, the panel unquestionably flipped the burden of
proof to Olsen. That is a patent legal error.
The panel concurrence also relies on sheer speculation
that, in adopting its General Orders, “the Central District was
likely unconvinced or uncertain that the safety protocols
instituted by state courts were effective enough to combat
the spread of COVID-19, particularly given the novelty of
the virus at the time.” See Panel Concurrence at 37 n.3. If
anything, this comment in the concurrence is even more
troubling than the opinion’s burden-shifting. According to
the concurrence, the Government did not need to present any
evidence about safety or mitigation measures, because the
Central District General Order indicates that the Central
District presumably concluded that “the safety protocols
instituted by state courts” were not “effective enough.” Id.But there is absolutely nothing in the record to support the
panel’s speculation that the Central District ever weighed or
assessed such evidence before cancelling all jury trials,
much less that there is any evidence to justify the federal
court’s different approach from that of the state courts. The
suggestion that no record ever needs to be made to justify
the wholesale suspension of criminal jury trials only
underscored the need for en banc review. 18
18
The panel concurrence speculates that, based on information
contained in various Los Angeles Times articles, perhaps the federal
courts’ more extreme response could be justified. See Panel
UNITED STATES V. OLSEN 89
* * *
The district court thus acted within its discretion in
concluding that the failure to grant the Government’s
requested continuance would not “be likely to make a
continuation of such proceeding impossible.” 18 U.S.C.
§ 3161(h)(7)(B)(i). This prong of the statutory factor in
§ 3161(h)(7)(B)(i) did not justify an ends-of-justice
continuance.
IV
The various significant errors recounted above are alone
sufficient to have warranted en banc rehearing. But perhaps
the most worrisome aspect of the panel’s decision relates to
its alternative invocation of the second prong of the statutory
factor in § 3161(h)(7)(B)(i), namely, whether a failure to
grant a continuance would “result in a miscarriage of
justice.” In holding that this factor was present here, the
panel reasoned that, because the failure to grant a
continuance led to the “subsequent dismissal of Olsen’s
indictment,” that “resulted in a miscarriage of justice.” 995
F.3d at 692. This startling holding—that the Speedy Trial
Act’s own mandatory remedy of dismissal itself can
constitute the “miscarriage of justice” that requires granting
a continuance so as to avoid the unjust dismissal—is
demonstrably wrong and effectively guts the mandatory
nature of the Act’s dismissal remedy.
As the panel noted, see 995 F.3d at 691, the district court
did not separately consider whether there would be a
Concurrence at 37 n.3. But it is wholly improper to go outside the record
in this way, especially by citing information drawn from sources that are
not subject to judicial notice and that the parties have not had an
opportunity to address.
90 UNITED STATES V. OLSEN
“miscarriage of justice,” but that is not surprising. The
“miscarriage of justice” exception is addressed to whether
more time is needed in order to ensure that the fairness of the
trial proceedings themselves, including the integrity of the
trial’s fact-finding, is preserved. See, e.g., United States v.
Martin, 742 F.2d 512, 514 (9th Cir. 1984) (where Supreme
Court had granted certiorari to decide whether to overrule
Ninth Circuit precedent that precluded the defendant’s
principal defense to a felon-in-possession charge, district
court properly concluded that continuing the trial pending
the Supreme Court’s decision would avoid a “miscarriage of
justice” that might otherwise result); United States v.
Apperson, 441 F.3d 1162, 1180 (10th Cir. 2006) (in view of
the lack of adequate time for Government counsel to prepare
for a hearing, a brief continuance was warranted to avoid a
“miscarriage of justice”); United States v. Hill, 197 F.3d 436,
441–43 (10th Cir. 1999) (“miscarriage of justice” exception
properly applied where Government would otherwise be
forced to go to trial without a key witness and without
adequate time to effectively prepare). The panel
concurrence does not cite any “miscarriage of justice” cases
that depart from this understanding. See Panel Concurrence
at 36–37 (citing Apperson and Hill).
The Government here made no such effort to show that,
absent an extension, the trial proceedings would have been
rendered unfair or the integrity of the trial’s fact-finding
would have been impaired. Rather, its only argument for
invoking the “miscarriage of justice” exception was that the
Speedy Trial Act’s remedy of dismissal is unjust. The panel
opinion agreed, but tellingly, it was unable to cite any
authority that would support the novel view that
continuances may be granted for the purpose of avoiding a
UNITED STATES V. OLSEN 91
supposedly unjust application of the statute’s mandatory
remedy. 19
Concurring in the denial of rehearing en banc, Judge
Bumatay argues that the undefined statutory phrase
“miscarriage of justice” is literally broad enough to cover a
perceived injustice caused by the Act’s own mandatory
remedy of dismissal. Bumatay Concurrence at 58–59. But
this argument ignores the familiar precept that the language
of a particular statutory provision should be construed “in
light of the statute’s structure and purpose.” See United
States v. Tinklenberg, 563 U.S. 647, 655 (2011) (applying
this principle to another Speedy Trial Act exclusion under
§ 3161(h)); id. at 664 (Scalia, J., concurring in part and in
the judgment) (agreeing that a reading of text should be
rejected if it “would make little sense in light of the context
19
The panel instead noted that the Speedy Trial Act’s judicial-
emergency provision, 18 U.S.C. § 3174(b), had been invoked in light of
the pandemic in order to avoid “releasing would-be convicted criminals
into society.” 995 F.3d at 693 (quoting In re Approval of Jud. Emergency
Declared in the Cent. Dist. of Cal., 995 F.3d 1140, 1143 (9th Cir. Jud.
Council 2020)). But that provision has no application here and, if
anything, further undercuts the panel’s decision. Section 3174(b)
authorizes across-the-board extensions for systemic difficulties in
meeting the Act’s deadlines, but in doing so, it operates only
prospectively and pointedly does not provide any relief for cases (such
as Olsen’s) that are already in the pipeline. Instead, § 3174(b) adds an
extra 110 days to the 70-day clock, but only for cases filed within up to
one year after the emergency is declared (and then only if the defendant
is not detained solely due to the federal charges). See 18 U.S.C.
§ 3174(b). There is no doubt that the judicial emergency provision is,
on its face, an exception that is intended to avoid dismissals that would
otherwise occur under the regular provisions of the Act. But that
provides no basis for concluding that the ends-of-justice exception,
under the regular provisions of the Act that apply here, permits courts to
treat the Act’s own mandatory remedy of dismissal as the miscarriage of
justice that justifies an otherwise unlawful continuance.
92 UNITED STATES V. OLSEN
of the provision and the structure of the statute”). And here,
construing the “miscarriage of justice” factor to authorize
exclusions of time for the express purpose of avoiding the
Act’s mandatory remedy of dismissal in § 3162 would
effectively eliminate the mandatory nature of that remedy.
A reading of the Act’s substantive provisions that effectively
nullifies the central feature of its remedial provision makes
little sense and is plainly incorrect. 20
The panel’s analysis of the miscarriage-of-justice
statutory factor, which also draws on the opinion’s list of
non-statutory factors, underscores how the panel has
converted the Speedy Trial Act’s mandatory remedy into a
discretionary remedy. In explaining why the dismissal of
Olsen’s indictment that flows from denying a further
continuance is unjust, the panel emphasizes that (1) Olsen
“was on pretrial-release” for “years”; (2) Olsen’s alleged
crimes were very serious, involving “his prescribing
20
Because I resolve the issues here on statutory grounds, I do not
reach the Sixth Amendment question addressed in Judge Bumatay’s
concurrence. It seems doubtful, however, that the general interpretive
line that Judge Bumatay draws—i.e., that the Speedy Trial Clause is
largely limited to avoiding “prolonged pretrial detention by the
government,” see Bumatay Concurrence at 46—is correct. The text of
the Sixth Amendment provides for “the right to a speedy and public trial”
in “all criminal prosecutions,” and not merely those in which the
defendant is detained pending trial. U.S. CONST. AMEND. VI (emphasis
added). As the text of the Eighth Amendment confirms, the Framers
were well aware of the concept of bail, and had they wanted to limit the
protection of the Speedy Trial Clause to those not admitted to bail, they
could readily have added language to that effect. They did not. See also
Betterman v. Montana, 578 U.S. 437, 442 (2016) (noting that the
objectives of the clause included, not just avoiding “oppressive
incarceration prior to trial,” but also “minimizing anxiety and concern
accompanying public accusation, and limiting the possibilities that long
delay will impair the ability of an accused to defend himself”)
(simplified).
UNITED STATES V. OLSEN 93
dangerous combinations and unnecessary amounts of highly
regulated pain medications”; (3) Olsen obtained multiple
continuances, followed by his later change to “insist[ing] on
sticking to his scheduled trial date”; and (4) the prosecution
was “blameless” for the Central District’s General Order.
995 F.3d at 692. Many of these factors overlap with the non-
statutory factors that the panel stated that the district court
should have considered. See supra at 84–85; see also 995
F.3d at 692. The panel effectively decided that, based on
these considerations, Olsen did not deserve the protections
of the Speedy Trial Act. That is, because insisting on a
speedy trial would lead to dismissal, and because Olsen was
unworthy of any such dismissal (even without prejudice) in
light of the panel’s evaluation of his circumstances, a
continuance had to be granted in order to avoid the otherwise
mandatory (and unjust) dismissal.
I agree that these sorts of considerations may enter into
the decision whether, after a Speedy Trial Act violation has
occurred, to dismiss the indictment with or without
prejudice. We know that because the statute says so:
In determining whether to dismiss the case
with or without prejudice, the court shall
consider, among others, each of the following
factors: the seriousness of the offense; the
facts and circumstances of the case which led
to the dismissal; and the impact of a
reprosecution on the administration of this
chapter and on the administration of justice.
18 U.S.C. § 3162(a)(2). And I agree that, in light of these
factors, the district court abused its discretion in dismissing
the indictment with prejudice rather than without
94 UNITED STATES V. OLSEN
prejudice. 21 But it is quite another matter to say that, because
any dismissal of the indictment—even one without
prejudice—would supposedly be a “miscarriage of justice,”
the district court may on that basis continue a criminal jury
trial. It is hard to overstate how destructive this holding is to
the Act’s mandatory dismissal remedy, which is expressed
in “categorical terms.” Zedner, 547 U.S. at 508. By
allowing continuances to be granted—even by the “judge on
his own motion,” 18 U.S.C. § 3161(h)(7)(A)—on the ground
that the defendant does not deserve the Act’s mandatory
remedy, the panel’s decision threatens to destroy a central
feature of this singularly important statute.
* * *
For the foregoing reasons, I respectfully dissent from the
denial of rehearing en banc.
21
I do not necessarily agree, however, with the panel’s assessment
of some of the factors in Olsen’s case. For example, without reciting any
of the details concerning the earlier continuances of Olsen’s trial, the
panel insinuates that Olsen’s opposition to a further continuance of the
October 2020 trial date was gamesmanship. 995 F.3d at 692. But as the
more complete record of those continuances makes clear, many of them
were granted based on issues concerning Olsen’s attorneys, as well as
counsel’s need for sufficient time to prepare in this complex case. See
supra at 67–69. That Olsen needed substantial initial time to prepare to
defend against his 35-count indictment does not mean that therefore he
has to acquiesce in open-ended further continuances long after all parties
are ready for trial.