Opinion
Case No.: SACR 17-00076-CJC
09-02-2020
UNITED STATES of America, Plaintiff, v. Jeffrey OLSEN, Defendant.
Bryant Yuan Fu Yang, AUSA—Office of US Attorney General Crimes Section, Los Angeles, CA, for Plaintiff.
Bryant Yuan Fu Yang, AUSA—Office of US Attorney General Crimes Section, Los Angeles, CA, for Plaintiff.
ORDER (1) DENYING THE GOVERNMENT'S EX PARTE APPLICATION TO CONTINUE TRIAL [Dkt. 54 ] AND (2) REQUESTING THE CHIEF JUDGE TO DIRECT THE JURY DEPARTMENT TO ISSUE JURY SUMMONS
CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to a speedy trial. An accused's right to a speedy trial is one of the most fundamental rights guaranteed by our Constitution. The right protects against undue and oppressive incarceration prior to trial and it allows the accused the ability to defend himself against the criminal charges before evidence becomes lost or destroyed and witnesses' memories fade. Unless conducting the jury trial is impossible, a court cannot deny the accused this fundamental constitutional right—not during during a national disaster, not during a terrorist attack, and not during the coronavirus pandemic that the United States and the world are currently facing.
In this case, the government seeks a continuance of Defendant Jeffery Olsen's trial scheduled for October 13, 2020. Specifically, the government believes it is too unsafe to conduct the trial during the coronavirus pandemic even if significant safety precautions are in place, including facial coverings, plexiglass shields, physical distancing and constant cleaning of furniture and surfaces. Most troubling, the government wants to continue Mr. Olsen's trial even though grand juries are convening in the same federal courthouse in Orange County where Mr. Olsen's trial would take place and state courts, just across the street from that federal courthouse, are conducting criminal jury trials. Clearly, conducting a jury trial during this coronavirus pandemic is possible. Yet the government wants the Court not to even try to do so for Mr. Olsen. Because continuing Mr. Olsen's October 13, 2020 trial would deny him a speedy trial under the Sixth Amendment, the government's ex parte application to continue the trial (Dkt. 54 [hereinafter "App.] ) is DENIED .
II. BACKGROUND
Defendant Jeffrey Olsen, a physician, was indicted in 2017 with numerous counts of prescribing and distributing substances including oxycodone, amphetamine salts, alprazolam, and hydrocodone without a legitimate medical purpose. (Dkt. 1 [Indictment].) The case was initially set for trial on September 5, 2017. (Dkt. 10 [Minutes of Post-Indictment Arraignment].) The Court has since approved numerous stipulations between the parties to continue this trial date. (See Dkts. 19, 21, 23, 26, 35.) The most recent of those stipulations was approved on June 19, 2020, and continued the trial date to October 13, 2020. (Dkt. 46.)
Factoring in the time found excludable in those orders, the Speedy Trial Act now requires that trial in this case begin on or before October 27, 2020. (App. at 6.)
On August 6, 2020, Chief Judge Philip S. Gutierrez issued a General Order suspending jury trials indefinitely in the Central District of California. C.D. Cal. General Order No. 20-09, In Re: Coronavirus Public Emergency, Order Concerning Phased Reopening of the Court (August 6, 2020) ("Until further notice, no jury trials will be conducted in criminal cases."). Indeed, no jury has been empaneled in the Central District in several months. See C.D. Cal. General Order No. 20-08, In Re: Coronavirus Public Emergency, Order Concerning Phased Reopening of the Court (May 28, 2020) (explaining that the Court would reopen in three phases, with Phase 3—resumption of jury trials—"be[ing] implemented at a date to be determined").
On August 20, 2020, at a status conference in this case, Mr. Olsen's counsel stated that Mr. Olsen wished to go forward with his trial on October 13, 2020, and that he was unwilling to agree to the exclusion of any further time under the Speedy Trial Act. (Dkt. 52 [Hearing Transcript] at 3.) The government, however, sought to continue the trial, arguing that the ends of justice would be served by a continuance, especially given the General Order indefinitely suspending criminal jury trials in the Central District. (See id. at 4–6.) This ex parte application followed.
III. LEGAL STANDARD
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." U.S. Const. amend. VI. The right to a speedy trial "has roots at the very foundation of our English law heritage" and "is one of the most basic rights preserved by our Constitution." Klopfer v. State of N.C. , 386 U.S. 213, 224, 226, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Indeed, "[e]xcept for the right of a fair trial before an impartial jury, no mandate of our jurisprudence is more important" than a defendant's right to a speedy trial. Furlow v. United States , 644 F.2d 764, 769 (9th Cir. 1981). Congress enacted the Speedy Trial Act in 1974 in order to make effective the Sixth Amendment's guarantee of a speedy trial. Pub. L. No. 93-619. The Act requires that a defendant's trial begin within 70 days of the filing of the indictment or the defendant's initial court appearance, whichever is later. 18 U.S.C. § 3161(c)(1).
"The Act recognizes, however, that legitimate needs of the government and of a criminal defendant may cause permissible delays." United States v. Daychild , 357 F.3d 1082, 1090 (9th Cir. 2004). Accordingly, it provides that certain periods of time may be excluded from the 70-day deadline. For example, 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. § 3162(h)(1)–(6). The Act also contains a sort of catchall category of excludable time. This section allows exclusion of time where a judge 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." 18 U.S.C. § 3162(h)(7)(A).
Congress intended the "ends of justice" provision to be "rarely used." United States v. Nance , 666 F.2d 353, 355 (9th Cir. 1982) (quoting the Act's legislative history). To ensure that broad discretion does not undermine the Act's important purpose, Congress enumerated factors that courts must consider in determining whether to grant an "ends of justice" continuance. Id. ; see United States v. Clymer , 25 F.3d 824, 829 (9th Cir. 1994) (explaining that "the ‘ends of justice’ exclusion ... may not be invoked in such a way as to circumvent the time limitations set forth in the Act"). Those factors include, as relevant here, "[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). IV. ANALYSIS
Mr. Olsen is insistent that his trial go forward on October 13, 2020. In this application, the government seeks to continue the trial over Mr. Olsen's objection. The Court must therefore determine whether the ends of justice served by continuing the trial outweigh the best interest of the public and Mr. Olsen in a speedy trial. 18 U.S.C. § 3162(h)(7)(A).
Continuances under the "ends of justice" exception in the Speedy Trial Act are appropriate if without a continuance, holding the trial would be impossible. 18 U.S.C. § 3161(h)(7)(B)(i). This exception has been used in response to natural disasters and other exigencies, but only where the triggering exigency made the criminal jury trial a physical and logistical impossibility. For example, the Ninth Circuit—noting that the question was "[a]lmost novel" to it—upheld a district court's order finding 14 days excludable where Mount Saint Helens erupted two days before the scheduled trial date, "obviously interrupt[ing] transportation [and] communication," which "affect[ed] the abilities of jurors, witnesses, counsel, [and] officials to attend the trial." See Furlow , 644 F.2d at 767–69. Similarly, the exception was applied to exclude a 20 day period after the September 11, 2001 terrorist attacks, when telephone, fax, and internet access were disrupted at the courthouse, law enforcement agents (including those working on the specific case) were redeployed to emergency service work, and lawyers without access to their offices were less able to communicate effectively with the Court and other counsel. United States v. Correa , 182 F. Supp. 2d 326, 327 (S.D.N.Y. 2001). Other cases confirm that actual impossibility is key for application of this exception. United States v. Richman , 600 F.2d 286, 294 (1st Cir. 1979) (finding no Speedy Trial Act violation where trial was continued three weeks after the "paralyzing ... Blizzard of ‘78" that made it so that "[t]rial could not commence on" the scheduled date); United States v. Scott , 245 Fed. Appx. 391 (5th Cir. 2007) (concluding without substantial analysis that there was no Speedy Trial Act violation where some delay was attributable to Hurricane Katrina).
There is no question that the current pandemic is serious, and with little precedent. But under the current circumstances, it is simply not a physical or logistical impossibility to conduct a jury trial. Unlike in the cases where the ends of justice has been applied in the wake of a natural disaster or other exigency, travel and communication are functioning. See Furlow , 644 F.2d at 767–69 ; Correa , 182 F. Supp. 2d at 327. Although some aspects of the practice of law may be less convenient during this time when many are practicing social distancing, no one contends that it is not possible to perform necessary trial preparations. Nor does anyone argue that there is insufficient courthouse staff available to facilitate a trial. See Furlow , 644 F.2d at 767–69 ; Correa , 182 F. Supp. 2d at 327.
Indeed, Defendant notes that his status on bond means that even less courthouse staff will be required to facilitate his trial than would be needed to hold a trial for a defendant in custody. (Dkt. 66 [Opposition] at 6.)
Indeed, if one had any doubt about the possibility of conducting a jury trial during the pandemic, one need look no further than the very courthouse in which Mr. Olsen seeks to have his jury trial in Orange County. There, between June 24 and August 18, 2020, a grand jury convened and returned twenty-six indictments. (See Ex. 1, attached to this order [chart of indictments returned in Southern Division of Central District of California from June 24, 2020 through August 18, 2020].) That means that the grand jury, which has at least 16 people on it, gathered in person in the Santa Ana courthouse numerous times. While they were gathered, they heard testimony from witnesses and deliberated together. If a grand jury can perform these functions in the exact courthouse Mr. Olsen seeks to be tried in, the Court surely can hold a jury trial for Mr. Olsen in that courthouse.
The Santa Ana Grand Jury did not meet between March 5 and June 23, 2020.
This also shows that the government continues to charge people with crimes and seek detention pending trial during the coronavirus pandemic. Yet the government takes the position that jury trials cannot proceed.
Even more compelling is the fact that the state court across the street from the Orange County federal courthouse has resumed jury trials with appropriate precautionary measures. The Orange County Superior Court did not hold any criminal jury trials in April or May of this year because of the pandemic. However, from the time it began holding criminal jury trials again in June through August 21, 2020, it has held 46 criminal jury trials. (See Ex. 2, attached to this order, at 30 [chart of jury trials held in Orange County Superior Court by month for 2019 and 2020] .) Notably, in the month of July, over 60% of potential Orange County jurors reported to fulfill their civic duty. (Ex. 2 at 26–28 [chart showing failure to appear ("FTA") rates].) Obviously, the state court has accomplished this by taking numerous careful measures to ensure safety. For example, it accommodates social distancing by 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. It also regularly disinfects the jury assembly room and restrooms, provides facial coverings, uses plexiglass shields in courtrooms, and trial participants use glove for document handling. (Ex. 2 at 1–10, 13–25, 34.) Of course, similar safety precautions will be in place for Mr. Olsen's trial.
These statistics were supplied to the Court by the Assistant Presiding Judge of the Orange County Superior Court, Erick L. Larsh.
Also worth noting is the fact that a federal jury trial was recently held in the Southern District of California.
In the Court's view, it is not a question of if the Court should hold Mr. Olsen's criminal jury trial during this stage of the coronavirus pandemic, but a question of how the Court will hold the jury trial during that stage. If it is not impossible to hold grand juries in the courthouse where Mr. Olsen's trial will take place, and it is not impossible to hold criminal jury trials in the state court across the street from that courthouse, it is clearly not impossible to hold a criminal jury trial for Mr. Olsen. Mr. Olsen's right to a speedy trial is one of the most basic and important rights preserved by our Constitution. Klopfer , 386 U.S. at 224, 87 S.Ct. 988 ; Furlow , 644 F.2d at 769. This Court cannot and will not deny him his right to one.
The government cites the Chief Judge's General Order to support its position for a continuance. (App. at 10–11.) The government's reliance on the Chief Judge's General Order is misplaced. The Chief Judge's General Order—adopted after a majority vote of judges in this District—does not say that it is impossible to conduct a jury trial. Rather, it, like the government in this case, relies on the premise that the pandemic has rendered it unsafe to conduct a jury trial at this time. The General Order and the government note that people continue to be infected, hospitalized, and—tragically—die due to the virus, and that holding jury trials will likely put people at increased risk of contracting the virus. C.D. Cal. General Order No. 20-09 ¶ 6.a.; (App. at 6 [expressing concern over holding a trial "without district-wide protocols for conducting jury trials may jeopardize the health of prospective jurors, witnesses, defendant, trial counsel, and court personnel"] ). The Court, of course, acknowledges the public health risk the virus poses to people. But the Constitution does not turn on this consideration. Rather, to protect the fundamental right to a speedy trial guaranteed by the Sixth Amendment of the Constitution, it requires that a trial only be continued over a defendant's objection if holding the trial is impossible. Holding Mr. Olsen's trial at this time is plainly not impossible.
Particularly troubling about the General Order's suspension of jury trials is that it is indefinite. The Order states that to inform when the Central District resumes jury trials, it will use "gating criteria [that] is designed to determine local COVID-19 exposure risks based on 14-day trends of facility exposure, community spread, and community restrictions." C.D. Cal. General Order 20-09 ¶ 2; (see App. at 2 [referring to the gating criteria] ). However, the Ninth Circuit has repeatedly admonished that "an ends of justice exclusion must be ‘specifically limited in time.’ " United States v. Ramirez-Cortez , 213 F.3d 1149, 1154 (9th Cir. 2000) (quoting United States v. Lloyd , 125 F.3d 1263, 1268 (9th Cir. 1997) (quoting United States v. Jordan, 915 F.2d 563, 565 (9th Cir. 1990) ); see Furlow , 644 F.2d at 769 (noting that a sine die continuance would be unacceptable). In keeping with this requirement, the periods of time courts excluded under the Speedy Trial Act due to previous natural disasters and other exigencies were brief and definite. See Furlow , 644 F.2d at 768 (14 days) ; Correa , 182 F. Supp. 2d at 329 (20 days) ; Richman , 600 F.2d at 294 (3 weeks). The gating criteria—which are guidance and recommendations from the Administrative Office of the United States Courts for reopening courthouses that do not carry any force of law and are completely untethered to the constitutional implications of a criminal defendant's right to a speedy trial—does not make sufficiently certain what is otherwise an unacceptably uncertain end-date. See Administrative Office of the U.S. Courts, Federal Judiciary COVID-19 Recovery Guidelines (Apr. 24, 2020), available at https://www.fedbar.org/wpcontent/uploads/2020/04/Federal-Judiciary-COVID-19-Recovery-Guidelines.pdf (last accessed Sept. 2, 2020).
Ironically, nor is the government's request for a 5-week continuance consistent with the rules set out in the above cases.
What is more, an "ends of justice" exclusion must be justified with reference to specific factual circumstances in the particular case as of the time the delay is ordered. United States v. Ramirez-Cortez , 213 F.3d 1149, 1154 (9th Cir. 2000) (concluding that an ends of justice continuance was not sufficiently justified where the judge made no inquiry into the actual need for a continuance in the particular case, instead checked off boxes on pre-printed forms without making findings on the statutory factors, and the record showed that the judge "was granting blanket continuances"). By its very nature, the General Order does not justify delays as of the time they are ordered in any particular case. And the government offers no reason why an "ends of justice" exclusion of time is justified in this specific case. For instance, it makes no mention of an essential witness being unavailable or an attorney on the case suffering a unique hardship. See United States v. Pollock , 726 F.2d 1456, 1461 (9th Cir. 1984) (stating that the "ends of justice" exclusion "was to be based on specific underlying factual circumstances" and "cannot be invoked without specific findings in the record"). Simply put, the General Order is repugnant to the Sixth Amendment and contrary to the "ends of justice."
It should be noted for the record that in July of this year, this Court agreed with all the other judges in the Central District not to conduct jury trials in August. At that time, this Court had no case on its docket in which a defendant was unwilling to exclude time under the Speedy Trial Act because of the coronavirus pandemic. It therefore made no sense to the Court to burden prospective jurors by summoning them to the courthouse when their service was not needed. Circumstances, however, have now changed. Mr. Olsen is unwilling to agree to the exclusion of any further time under the Speedy Trial Act.
V. CONCLUSION
The Sixth Amendment guarantees the accused a speedy trial even when circumstances are challenging. The accused has that constitutional right even when a court is faced with a natural disaster, a terrorist attack and a pandemic. If 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.
Here, it is certainly possible to conduct a jury trial for Mr. Olsen in the federal courthouse in Orange County. Indeed, the grand jury is convening and returning indictments there and state courts across the street from there are successfully conducting jury trials. Contrary to the government's assertion, the pandemic does not allow this Court to deny Mr. Olsen his constitutional right to a speedy trial. Accordingly, the government's ex parte application to continue Mr. Olsen's trial scheduled for October 13, 2020 is DENIED . The Court herby requests the Chief Judge of the Central District of California to direct the Jury Department to summon jurors for the jury trial scheduled for that date.
The Court understands that the jury department requires six weeks to summon prospective jurors. It is therefore necessary that the Court make its request to summon prospective jurors now.
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