Petition for Writ of Certiorari — Jonathan C. Roush, Petitioner v. United States

APPENDIX A

Panel Opinion,

Court of Appeals for the Sixth Circuit

Appeal No.: 21-3820

December 7, 2021

No. 21-3820

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

UNITED STATES OF AMERICA,

)

)

Plaintiff-Appellee,

Dec 07, 2021

DEBORAH S! HUNT, Clerk

)

)

v.

)

ORDER

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JONATHAN C. ROUSH,

)

)

Defendant-Appellant.

)

Before: MOORE, GILMAN, and KETHLEDGE, Circuit Judges.

Defendant Jonathan C. Roush, proceeding pro se, appeals a district court order denying"

his motion for release pending trial based on violations of the Speedy Trial Act, 18 U.S.C.

§ 3164. He also moves for release pending appeal, to exclude the district court’s post-denial

order memorializing its computation of his countable period of detention, and has twice moved

to expedite consideration of his motion for release. The government opposes reversal, opposes

Roush’s release, and opposes exclusion of the district court document. Roush replies. Neither

party requests oral argument. The facts and legal arguments are adequately presented on the

briefs; thus, we unanimously agree that oral argument is not necessary.

Fed. R. App. P.

34(a)(2)(C).

Where the district court has denied a Speedy Trial Act claim, we review the district

court’s legal rulings de novo and its factual findings for clear error. United States v. Sobh, 571

F.3d 600, 602 (6th Cir. 2009). “[W]e review the district court’s decision to grant an ends-of-

No. 21-3820

-2justice continuance under an abuse-of-discretion standard.” United States v. White, 920 F.3d

1109, 1112 (6th Cir. 2019) (quoting United States v. Williams, 753 F.3d 626, 635 (6th Cir.

2014)). And “[a] defendant must prove actual prejudice to obtain a reversal on appeal of the trial

judge’s decision to grant a continuance.” United States v. Strickland, 342 F. App’x 103, 110 (6th

Cir. 2009) (citing United States v. Monger, 879 F.2d 218, 221 (6th Cir. 1989)).

“The Speedy Trial Act provides that the trial of a defendant detained pending trial ‘shall

commence not later than ninety days following the beginning of such continuous detention.’”

United States v. Monk, 12 F. App’x 325, 326 (6th Cir. 2001) (quoting 18 U.S.C. § 3164(b)). And

“[n]o detainee . . . shall be held in custody pending trial after the expiration of such ninety-day

period required for the commencement of his trial.”

18 U.S.C. § 3164(c).

However, the

calculation of the 90-day period takes into account certain excludable periods of delay under 18

U.S.C. § 3161(h). 18 U.S.C. § 3164(b). Excluded from the 90-day period is “[a]ny period of

delay resulting from a continuance granted by any judge on his own motion ... if the judge

granted such continuance 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); see also United States v. Richardson, 681 F.3d 736, 738 (6th Cir. 2012).

“But the [Speedy Trial] Act also warns that a delay resulting from an ends-of-justice continuance

will not be excludable from the [90-day] period ‘unless the court sets forth, in the record of the

case, either orally or in writing, its reasons’” for such findings. Richardson, 681 F.3d 736 at

738-39 (quoting 18 U.S.C. § 3161(h)(7)(A)). Although “the Act is clear that the findings must

be made, if only in the judge’s mind, before granting the continuance .. ., the Act is ambiguous

on precisely when those findings must be ‘se[t] forth, in the record of the case.”’ Zedner v.

United States, 547 U.S. 489, 506-07 (2006) (citation omitted). The Supreme Court has held that

No. 21-3820

-3“at the very least the Act implies that those findings must be put on the record by the time a

district court rules on a defendant’s motion to dismiss under [18 U.S.C.] § 3162(a)(2).” Id. at

507.

At Roush’s September 1, 2021, status conference, the district court denied his motion for

release based on the district court’s General Orders regarding defendants’ speedy trial rights

during the pandemic. Although this discussion was brief, it does not show an abuse of the

district court’s discretion.

The district court orally set forth its reasons for finding that its

General Orders pertaining to the pandemic—which were expressly issued as ends-of-justice

continuances excludable from speedy trial calculations—rapplied to Roush’s case. These orders

were properly applied, because the district court was managing cases in light of the COVID-19

pandemic. “And so long as the court based its continuance on permissible factors under the

Speedy Trial Act, and did not invent after-the-fact findings to justify an ends-of-justice

continuance that cannot fairly be said, upon review of the record, to have served as its basis for

granting the continuance, its action was proper.” United States v. Patton, 651 F. App’x 423, 426

(6th Cir. 2016) (quoting United States v. Brown> 819 F.3d 800, 814 (6th Cir. 2016)) (cleaned up).

Here, the district court clearly, albeit briefly, articulated its reason for granting the continuances

set forth in the general orders: the ongoing pandemic. The district court did not abuse its

discretion in finding that the ends of justice served by postponing or limiting jury trials during

the pandemic under the General Orders outweighed Roush’s right to a speedy trial. And Roush

cannot show that the denial of his motion resulted in actual prejudice, especially because he has

since sought another continuance, pushing his trial to February 2022. As the district court stated

at Roush’s status conference and further explained in its September 17, 2021 order, Roush has

No. 21-3820

-4not been detained for 90 days of non-excludable time. Accordingly, there is no basis upon which

he should be released.

The district court’s order is AFFIRMED. The remaining motions are DENIED AS

MOOT.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

APPENDIX C

Marginal Entry Order Memorializing

Oral Ruling

N.D. Ohio Case No.: 5:20-CR-00621

R. 22, Order

September 8, 2021

Case: 5:20-cr-00621-JRA Doc#: 22 Filed: 09/08/21 lofl. PagelD#:159

EiLED

IN THE UNITED STATES DISTRICT COURTS

FOR THE NORTHERN DISTRICT OF OHIO

JUN 2 3 2021

CLERK, U.S. DISTRICT COURT

NORTHERN DISTRICT OF OHIO

YOUNGSTOWN

United States of America

)

Case No.: 5:20-CR-00621

Plaintiff,

)

Senior Judge Christopher A. Boyko .

filed

v

)

)

V.

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EMERGENCY MOTION FOR

Jonathan C. Roush

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IMMEDIATE RELEASE

Defendant,

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PURSUANT TO 18 USCS 3164 (c)

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{Hearing Requested}

Defendant, pro se, moves this Honorable Court to Grant an Order to set a date for a hearing for

the immediate release of Defendant from detention, pursuant to 18 USCS 3164 (c), subject to the

proposed conditions of release set forth in the attached memorandum.

Respectfully Submitted,

m / /,

Jonathan Roush

Defendant, Pro Se

N.E.O.C.C., #12801509

2240 Hubbard Road

Youngstown, Ohio 44505

JUN 2 3 2021

Additional material

from this filing is

available in the

Clerks Office.