United States of America v.Jeffrey Olsen

San Francisco - Criminal defense lawyer represented defendant with an illegally prescribing opioids charge.

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. FowlerJr. (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 thirtyfour 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 districtapproved 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 at

767–68. 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 COVID19 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 COVID19-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-casestracking-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/californiacoronavirus-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 nonstatutory 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-ofjustice 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 "nonstatutory 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 endsof-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.

7 Id. at 56 (describing the commissions of gaol delivery and oyer and

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 Foundingera 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 Englishspeaking 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 endsof-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-ofjustice 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 twomonth 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-ofjustice 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-therecord 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-ofjustice 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 at

767–69 ("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 endsof-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 endsof-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 nonstatutory 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 nonstatutory 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 nonstatutory 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 judicialemergency 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 nonstatutory 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.

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.