Petition for Writ of Certiorari — David Anthony Battle, Petitioner v. United States
Supreme Court briefMay 20, 2023
Ask Donna
What actually matters in this document.
Text
No. ________________
IN THE SUPREME COURT OF THE UNITED STATES
________________
DAVID ANTHONY BATTLE, Petitioner
v.
UNITED STATES OF AMERICA, Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS P. SLEISENGER, ESQ.
1901 Avenue of the Stars, Suite 200
Los Angeles, California 90067
(310) 300-1314
Attorney for Petitioner
DAVID ANTHONY BATTLE
Under Appointment by the Criminal
Justice Act
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
REASONS FOR GRANTING THE PETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.
The Sixth Amendment and Statutory Right to a Speedy Trial Were
Violated under the four factor test of Barker v. Wingo and the seven
seven factor test in COVID-19 cases under United States v. Olsen . . . 6
2.
Proper Ends of Justice Findings to Allow Suspension of Jury Trials
for Sixteen Months Did Not Occur . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.
The District Court May Dismiss the Indictment With Prejudice . . . . 16
4.
Inter-Circuit Splits Support Grant of the Petition . . . . . . . . . . . . . . . . 17
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
APPENDIX A
Unpublished Memorandum Filed February 22, 2023
APPENDIX B
District Court Order Denying Motion to Dismiss Filed February 2, 2021
i
TABLE OF AUTHORITIES
CASES
PAGE
Barker v. Wingo,
407 U.S. 514 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8, 16
Doggett v. United States,
505 U.S. 647 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9
Furlow v. United States,
644 F.2d 764 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Klopfer v. North Carolina,
386 U.S. 213 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Marshall v. Gates,
44 F.3d 722 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Martinez-Brooks v. Easter,
459 F.Supp.3d 411 (D. Conn. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Rangel v. California Rehabilitation Center,
No. 5:21-cv-00466-DMG, 2021 WL 4706712, (C.D. Cal. March 25, 2021) . . . . . . . . . 11
Stern v. U.S. Dist. Ct. For the Dist. Of Mass.,
214 F.3d 4 (1st Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States v. Allen,
34 F.3d 789 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
United States v. Barnes,
159 F.3d 4 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19
United States v. Bert,
814 F.3d 70 (2nd Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Blank,
701 F.3d 1084 (5th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Burrell,
634 F.3d 284 (5th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ii
TABLE OF AUTHORITIES (Cont’d)
CASES
PAGE
United States v. Clymer,
25 F.3d 824 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 14, 16-17
United States v. Correa,
182 F.Supp. 2d 326 (S.D.N.Y. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
United States v. Dignam,
716 F.3d 915 (5th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States v. Gambino,
59 F.3d 353 (2nd Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Gonzalez,
137 F.3d 1431 (10th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States v. Gregory,
322 F.3d 1157 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Henning,
513 F.Supp.3d 1193 (C.D. Cal. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Henry,
538 F.3d 300 (4th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States v. Huete-Sandoval,
668 F.3d 1 (1st Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States v. Jones,
56 F.3d 581 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States v. Jordan,
915 F.2d 563 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10, 15
United States v. Kelly,
36 F.3d 1118 (D.C. Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States v. Lattany,
982 F.2d 866 (3rd Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
iii
TABLE OF AUTHORITIES (Cont’d)
CASES
PAGE
United States v. Loud Hawk,
474 U.S. 302 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Nance,
666 F.2d 353 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. New Buffalo Amusement Corp.,
600 F.2d 368 (2nd Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States v. Olsen,
494 F. Supp. 3d 722 (C.D. Cal. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
United States v. Olsen,
21 F.4th 1036 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim
United States v. Olsen,
No. SACR 17-00076-CJC, 2022 WL 4493853 (C.D. Cal. August 2022) . . . . . . . . . . . . 5
United States v. Ramirez,
973 F.2d 36 (1st Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 19
United States v. Shellef,
718 F.3d 94 (2nd Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Skinner,
No. 3:19cr19, 2021 WL 1725543 (E.D. Va. April 29, 2021) . . . . . . . . . . . . . . . . . . . . . 12
United States v. Spring,
80 F.3d 1450 (10th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19
United States v. Taylor,
487 U.S. 326 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14, 17
United States v. Tigano,
880 F.3d 602 (2nd Cir. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Williams v. United States District Court,
658 F.2d 430 (6th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
iv
TABLE OF AUTHORITIES (Cont’d)
FEDERAL STATUTES
PAGE
18 U.S.C. § 1951 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 18-19
18 U.S.C. § 3161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 8
18 U.S.C. § 3162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
18 U.S.C. § 3231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 2071 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
FEDERAL RULES
Fed. R. Crim. P. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim
Fed. R. Crim. P. 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
v
QUESTIONS PRESENTED
1.
Whether the district court failed to make proper ends of justice findings to
justify a sixteen month delay in the trial based upon pronouncements contained in
the court’s general orders addressing COVID-19.
2.
Whether it was possible to hold a jury trial safely where the presence of
COVID-19 was otherwise uncontrolled in local contract jail facilities where Mr.
Battle was in pretrial custody in what constituted oppressive pretrial incarceration
within the meaning of the Sixth Amendment and the Speedy Trial Act.
3.
Whether a district court must dismiss an indictment with prejudice as a
remedy for the lower court’s violation of defendant’s constitutional and statutory
rights to a Speedy Trial.
vi
No. ________________
IN THE SUPREME COURT OF THE UNITED STATES
________________
DAVID ANTHONY BATTLE, Petitioner
v.
UNITED STATES OF AMERICA, Respondent.
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
The petitioner David Anthony Battle respectfully prays that a writ of
certiorari issue to review the United States Court of Appeals for the Ninth
Circuit’s decision affirming his conviction and sentence.
OPINION BELOW
On February 22, 2023, the United States Court of Appeals for the Ninth
Circuit filed a unpublished memorandum decision in United States v. David
Anthony Battle, No. 21-50221, affirming the conviction and sentence. A copy of
1
the opinion is attached hereto as Appendix “A”.
JURISDICTION
The jurisdiction of this Court is invoked under 28 U.S.C. § 1254. The
District Court had jurisdiction pursuant to 18 U.S.C. § 3231. The Ninth Circuit
Court of Appeals had jurisdiction pursuant to 28 U.S.C. § 1291.
STATEMENT OF THE CASE
Mr. Battle plead guilty to six counts of interference with commerce by
robbery in violation of Title 18 U.S.C. § 1951. Prior to acceptance of his pleas,
Battle preserved his right to appeal the denial of his right to a speedy trial as part
of a conditional plea agreement. (ER 11-30).1
On October 4, 2021, the district court sentenced Battle to a term of 110
months. (ER 39, 387). On October 6, 2021, Battle filed a timely notice of appeal.
(ER 38, 388).
On February 22, 2023, in an unpublished memorandum decision, the United
States Court of Appeals for the Ninth Circuit affirmed Battle’s conviction and
sentence. (App. “A”).
1
“ER” refers to Mr. Battle’s excerpts of record filed in the Ninth Circuit. “SER”
refers to the government’s supplemental excerpts of record.
2
STATEMENT OF FACTS
On August 10, 2020, Mr. Battle was arrested in this case. He thereafter
spent seven and half months in pretrial custody at various county jail facilities,
including the Robert Presley Detention Center in Riverside County and the West
Valley and Central Detention Centers in San Bernardino County. (ER-143).
On October 7, 2020, Battle was indicted on six counts of interference with
commerce by robbery of pharmacies and one count of attempted robbery of a
pharmacy, all in violation of 18 U.S.C. § 951(a). (ER-132-39, 142).
On November 10, 2020, the government moved to continue the trial from
November 30, 2020 to February 15, 2021. On November 13, 2020, Battle filed an
opposition to that motion. On January 8, 2021, Battle filed a motion to dismiss the
indictment, alleging violation of his constitutional and statutory rights to a speedy
trial. On January 26, 2021, the government filed the last of its requests to continue
the trial, which was granted and trial was set for April 6, 2021. On February 2,
2021, without a hearing, the district court denied the motion to dismiss. In its
denial, the court observed that it had previously continued the trial due to the
“ongoing COVID-19 pandemic.” In support, the court relied upon General Order
No. 20-09 (“G.O. 20-09”) of the Chief Judge for the Central District of California
(“CDCA”), dated August 6, 2020. G.O. 20-09 declared that “Until further notice,
3
no jury trials will be conducted in criminal cases.” In addition to G.O. 20-09, the
lower court found excludable time under Title 18, United States Code, Section
3161(h)(7)(B)(I) which states, in pertinent part, that “ . . . . 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. Jury trials did not
resume in the district until the Chief Judge’s executive committee lifted the ban
more than a year later on February 22, 2022. (App. “B”; ER-31-41, 67, 69, 79-80,
102-106, 130, 145-46, 148; SER-44).
On February 25, 2021, the government filed a Fed. R. Crim. P. 11(a)(2)
conditional plea agreement, preserving Mr. Battle’s right to pursue the instant
appeal. (ER-10-11, 30, 63, 146, 148).
Battle’s motion to dismiss was based in part upon the district court case of
United States v. Jeffrey Olsen, 494 F.Supp.3d 722 (C.D. Cal. 2020). In that case,
Judge Carney from the Southern Division granted a defense motion to dismiss
based on Olsen’s constitutional right to a speedy trial. Judge Carney’s ruling was
later overturned in United States v. Olsen, 21 F.4th 1036 (9th Cir. 2022), cert.
denied, — S.Ct.-—, 2022 WL 1528431 (May 16, 2022). Unlike Battle, Olsen was
never in pretrial custody. (ER-77-96).
4
G.O. 20-09, and the remaining G.O.’s which came before and after,
contained no guidance for finding discernable end dates for what became authority
to grant sine die continuances for the duration of the pandemic. Yet, since March
2020, jurors in the California state courts were reporting for duty and returning
trial verdicts in at least 50 criminal cases in Riverside County alone, not to
mention numerous jury trials that occurred in the superior courts for the remaining
six counties that comprise the CDCA. United States v. Olsen, No. SACR 1700076-CJC, 2022 WL 4493853, at *12 (C.D. Cal. August 22, 2022) (“[D]uring the
first year of the pandemic, the state courts for the seven counties within the
Central District held at least 491 jury trials. The Central District held none.”).
There were also some federal courts that conducted criminal jury trials
during this period, as well. See United States v. Allen, 34 F.4th 789, 794-95, 798
n.5 (9th Cir. 2022) (identifying thirteen federal jury trials, including two in the
Ninth Circuit – not including Allen itself – which took place in “late 2020”).
Additionally, during the same period, federal grand juries, often convening in
small rooms, returned indictments in the same courthouses where jury trials were
suspended. Criminal defendants also made initial appearances, guilty pleas were
taken, and criminal sentencings and revocation hearings were called to
completion. Other court-related business, including the housing of federal pretrial
5
defendants in local contract jail facilities, continued uninterrupted despite the
presence of COVID-19, a highly contagious disease which invaded the confined
spaces of these facilities with few options for prevention or escape. (ER-65-101,
115-18).
REASONS FOR GRANTING THE PETITION
1.
The Sixth Amendment and Statutory Right to a Speedy Trial Were
Violated under the four factor test of Barker v. Wingo and the seven
factor test in COVID-19 cases under United States v. Olsen
The U.S. Constitution and the Speedy Trial Act, 18 U.S.C. § 3161 et seq.,
require mandatory dismissal of an indictment where a defendant requests to be
brought to trial within 70 days of his initial appearance, or the filing of an
indictment, whichever last occurs. U.S. Const. amend. VI; 18 U.S.C. 3161(c)(1).
Since the CDCA’s ban on jury trials lasted until at least February 2022, delay in
this case exceeded approximately sixteen months.
A four factor test found in this Court’s decision in Barker include the length
of the delay, the reasons for the delay, whether the right has been asserted, and
whether there was actual prejudice. Barker v. Wingo, 407 U.S. 514, 531-532
(1972) (A claim to one’s speedy trial right is “entitled to strong evidentiary weight
in determining whether the defendant is being deprived of the right.”). Congress
enacted the Speedy Trial Act to give further effect to the constitutional right.
6
While it requires trial to begin within seventy days of the filing of an indictment, it
allows for excludable time in cases involving competency examinations,
interlocutory appeals, pretrial motions, missing essential witnesses, or findings
under the catchall “ends of justice” provision, with the intention that this last
justification be “rarely used.” United States v. Nance, 666 F.2d 353, 355 (9th Cir.
1982) (discussing the Act’s legislative history); United States v. Clymer 25 F.3d
824, 828 (9th Cir. 1994); United States v. Jordan, 915 F.2d 563, 565 (9th Cir. 1990).
A continuance beyond the statutory deadline must also satisfy two additional
requirements, namely, that it be both “specifically limited in time” and “justified
with reference to the facts as of the time the delay is ordered.” Clymer, 25 F.3d at
828. Courts are required to look to numerous factors in determining whether “ends
of justice” continuances are appropriate and, in the context of Battle’s case,
“[w]hether the failure to grant such a continuance in the proceeding would be likely
to make a such a proceeding impossible, or result in a miscarriage of justice.” 18
U.S.C. § 3161(h)(7)(B)(I).
During the COVID-19 pandemic, in the 9th Circuit, seven additional factors
were used to evaluate whether ends of justice concerns outweighed the best
interests of the defendant and the public, in addition to Barker’s enumerated
factors. United States v. Olsen, 21 F.4th 1036, 1047 (9th Cir. 2022). They include:
7
(1) whether a defendant is detained pending trial; (2) how long a defendant has
been detained; (3) whether the defendant has invoked speedy trial rights since the
inception; (4) whether the defendant, if detained, belongs to a population that is
particularly susceptible to complications if infected with the virus; (5) the
seriousness of the charges; (6) whether recidivism may occur if charges are
dismissed; and (7) whether the district court has the ability to safely conduct a trial.
Id. at 1046.
Of the seven factors, the two most relevant in this case, both of which were
overlooked by the district court, include the fourth factor dealing with
susceptibility to complications if infected, and the seventh factor addressing
whether trial can proceed in a manner considered safe for all participants.
The issue of safety itself, however, is not limited to conditions in the
courtroom and Olsen’s fourth factor seeks to identify inmates who are more
susceptible to complications associated with the virus. The Sixth Amendment also
protects such defendants against prolonged exposure to oppressive pretrial
incarceration. See Klopfer v. North Carolina, 386 U.S. 213, 222 (1967); United
States v. Loud Hawk, 474 U.S. 302, 312 (1986). Consistent with the fourth factor,
a finding of actual prejudice is found in Battle’s case since he was exposed to
“oppressive pretrial incarceration” based upon actual conditions of confinement.
8
Barker, 407 U.S. at 532 (poor prison conditions can result in oppressive pretrial
incarceration); Doggett v. United States, 505 U.S. 647, 651, 654 (1992); United
States v. Tigano, 880 F.3d 602, 618 (2nd Cir. 2018) (local jails where federal
prisoner held offered little or no recreational or rehabilitative programs).
2.
Proper Ends of Justice Findings to Allow Suspension of Jury
Trials for Sixteen Months Did Not Occur
The burden of showing that the ends of justice continuances were warranted
was with the government. Their reliance upon G.O. 20-09's ban on jury trials
required that the ban itself not be in conflict with either the Constitution or the
Speedy Trial Act. 28 U.S.C. § 2071(a) (court rules shall be “consistent with Acts
of Congress”); Fed. R. Crim. P. 57(a)(1) (same); Stern v. U.S. Dist. Ct. For the
Dist. Of Mass., 214 F.3d 4, 13 (1st Cir. 2000) (“Local Rules should cover only
interstitial matters. They may not create or affect substantive rights.”) (further
citations omitted); Marshall v. Gates, 44 F.3d 722, 724-25 (9th Cir. 1995); Williams
v. United States District Court, 658 F.2d 430, 435 (6th Cir. 1981) (local rule may
not be followed when it “alters those aspects of the litigation process which bear
upon the ultimate outcome of the litigation, thereby frustrating federal policies.”).
G.O. 20-09, and the remaining general orders, were “violative of the [Speedy
Trial] Act which required that any ends of justice continuance be specifically
9
limited in time and that there be findings supported by the record to justify each
ends of justice continuance.” Olsen, 21 F.4th at 1073 (Collins, J., dissenting)
(internal citation and quotations omitted). The general orders failed to discuss any
of the Barker or Olsen factors which were key to the analysis. Yet, G.O. 20-09, by
its terms, ordered trials to be suspended indefinitely despite the ends of justice
requirement that continuances be limited in time. The G.O.’s relied upon
information both outdated and incomplete in terms of whether a trial could be
conducted in a safe manner, turning to the most drastic step of suspending trials
without any meaningful balancing of the Barker and Olsen factors. The district
court was therefore misguided in relying upon general orders to “create an ends of
justice exclusion for all continuances subsequently entered, regardless of any
change in circumstance, and without the need for further findings.” United States v.
Jordan, 915 F.2d 563, 565-66 (9th Cir. 1990) (internal quotations omitted).
G.O. 20-09 referred to California Governor Newsom’s declaration of a
public-health emergency due to COVID-19 and the best practices of the Centers for
Disease Control as its two primary sources. These pronouncements did not
address, must less mention, criminal court operations. Neither the G.O.’s nor the
official state and federal responses considered safety measures that could be taken
in the trial courts, which included staggered jury times, use of face masks, social
10
distancing, reduced seating capacity, gloved handling of exhibits, proper
ventilation, hand sanitizers, plexiglass barriers, questionnaires for deferral of jury
service, or any other precautionary steps. Determining whether it was safe to hold
a trial, or whether it was physically or logistically impractical, required the district
court to make a “case-by-case review rather than . . . categorical pronouncements.”
United States v. Shellef, 718 F.3d 94, 105 (2nd Cir. 2013), quoted in United States
v. Henning, 513 F.Supp.3d 1193, 1204 (C.D. Cal. 2021). Without such factual and
legal findings, the court-imposed waiver of criminal defendant’s speedy trial rights
was clearly improper. (CR 32; ER-31-32, 146).
Oppressive pretrial incarceration was also shown due to the presence of
COVID-19 where Battle was housed in pretrial confinement since “[t]he risk posed
by infectious diseases in jails and prisons is significantly higher than in the
community, both in terms of risk of transmission, exposure, and harm to
individuals who become infected.” Martinez-Brooks v. Easter, 459 F.Supp. 3d
411, 418 (D.Conn. 2020); see also Rangel v. California Rehabilitation Center, No.
5:21-cv-00466-DMG, 2021 WL 4706712, at *4 (C.D. Cal. March 25, 2021)
(Inmates tested positive for COVID-19 at Robert Presley Detention Center where
Battle was housed and the disease was found to pose “a substantial risk of serious
harm to prisoners in general.”).
11
Social distancing in the jails is found to be “virtually impossible.” MartinezBrooks, Id. at 418; see also United States v. Skinner, No. 3:19cr19, 2021 WL
1725543, at *29 (E.D. Va. April 29, 2021) (“Skinner has faced oppressive pretrial
incarceration and heightened anxiety due to the COVID-19 pandemic”); compare
United States v. Olsen, 21 F.4th 1036, 1065 (9th Cir. 2022) (“COVID-19 does not
put the Constitution on hold . . . . Yet, because Olsen was not under pretrial
detention, I do not believe he suffered a deprivation of his Sixth Amendment
speedy trial right.”) (Bumatay, J., concurring).
Based on a study of the effects of COVID-19 in prisons during the period
April 5, 2020 through April 3, 2021, inmates like Battle who were in pretrial
custody during this time were more than three times as likely to contract
COVID-19 and more than 2.5 times as likely to die. Marquez et al., COVID-19
Incidence and Mortality in Federal and State Prisons Compared With the US
Population, April 5, 2020, to April 3, 2021, Journal of the American Medical
Association (JAMA) (Oct. 6, 2021), available at https://jamanetwork.com/journals/
jama/fullarticle/2784944; see also Toblin, R. and Hagan, L., COVID-19 Case and
Mortality Rates in the Federal Bureau of Prisons, 61(1) Am. J. Preventive
Medicine 120-123 (2021), available at https://www.ncbi.nlm.nih.gov/ pmc/articles/
PMC7905372 (“The Federal Bureau of Prisons COVID-19 case rates and standard
12
mortality ratio were approximately 5 and 2.5 times those in U.S. adults,
respectively, consistent with those of prisons nationwide.”).
In relation to the fourth Olsen factor, the local jails where Mr. Battle was
housed fell within the ambit of the JAMA study, making him “. . . . particularly
susceptible to complications if infected with the virus.” Olsen, 21 F.3d at 10461077; see also Hill, L. and Artiga, S. COVID-19 Cases and Deaths by Race/
Ethnicity: Current Data and Changes Over Time, Kaiser Family Foundation (Feb.
22, 2022), available at https://tinyurl.com/4jht942c (“[O]verall, Black, Hispanic,
and AIAN people have experienced higher rates of COVID-19 infection and death
compared to White people, particularly when accounting for age differences across
racial and ethnic groups.”) (Battle is African-American).
In addition to the fourth and seventh Olsen factors, at least three of the
remaining five factors supported Mr. Battle’s position, as well. Battle remained
detained at all times, had remained detained well beyond the time limits set forth
under the Speedy Trial Act, and had consistently and repeatedly invoked his rights
to a speedy trial.
While the decision is left to the “guided discretion of the district court,” the
presence of actual prejudice to the defendant is a relevant factor, as is the length of
the delay and any responsibility the defendant has for the delay. United States v.
13
Taylor, 487 U.S. 326, 332, 335, 339-41 (1988); United States v. Ramirez, 973 F.2d
36, 39 (1st Cir. 1992) (“When an STA violation is caused by the court or the
prosecutor, it weighs in favor of granting a dismissal with prejudice.”).
Actual prejudice is demonstrated due to the length of the delay when, as in
this case, oppressive pretrial confinement is shown. United States v. Gregory, 322
F.3d 1157, 1163 (9th Cir. 2003) (further citation omitted). In G.O. 20-09, the Chief
District Court Judge acknowledged increased rates of infection, as well as a rise in
hospitalizations and deaths in the seven counties that make up the CDCA,
including Riverside and San Bernardino counties. This meant that changed
circumstances made pretrial confinement more, not less, oppressive than at other
times during the pandemic. (SER-44-45).
Unlike the prosecution in Olsen, the government here sought every
continuance while Battle opposed them all. The open-ended nature of the
continuances which followed were guided by the a series of G.O.’s which meant
that no cases were tried in the CDCA before February 2022 when petit juries were
finally summoned to serve. Until then, the suspensions remained unchecked so
long as a majority of judges in the CDCA continued to support them. These events
“seriously distorted” the process of making ends of justice findings as part of the
process of granting continuances of the trial. United States v. Clymer, 25 F.3d at
14
828-829 (9th Cir. 1994) (continuances must be “specifically limited in time” and
“justified with reference to the facts as of the time the delay is ordered”); United
States v. Jordan, 915 F.2d at 565-66 (indefinite continuances “could exempt the
entire case from the requirements of the Speedy Trial Act altogether, and open up
the door for wholly unnecessary delays in contravention of the Act’s purpose.”).
(SER-33-50).
Failure to grant the continuances did not make trial of Battle’s case
“impossible,” nor would it have resulted in a miscarriage of justice. After Battle
invoked his right to proceed to trial within the prescribed time limits, the four to
five day trial of this case should have proceeded once precautionary measures were
taken. Ample evidence exists to support this claim, particularly since 16 or more
grand jurors continued to do their work in confined spaces, contributing to what
became a backlog of pending indictments. Moreover, trial delay in this case was a
prolonged one, significantly so when compared to the two oft-cited cases allowing
suspension of trials based upon ends of justice findings due to impossibility and the
miscarriage of justice. Furlow v. United States, 644 F.2d 764, 769 (9th Cir. 1981)
(two week suspension due to the volcanic eruption of Mt. Saint Helens); United
States v. Correa, 182 F.Supp. 2d 326, 327 (S.D.N.Y. 2001) (twenty day delay
15
following the terrorist attack at the World Trade Center). Rather, the delay here
spanned a period well in excess of one year.
3.
The District Court May Dismiss the Indictment With Prejudice
When a violation of a defendant’s rights to a speedy trial are shown, and in
the absence of proper excludable time findings, the district court must dismiss an
indictment not tried within the 70 day limit. 18 U.S.C. § 3162(a) (1)-(2). The
dismissal may either be with or without prejudice for refiling the charges. In
deciding between these two alternatives, courts consider a number of factors,
including the seriousness of the offense, the circumstances which led to the
dismissal, the impact of a second prosecution, and the administration of justice
generally. The length of the delay is also considered. Id.
While COVID-19 is the chief source of actual prejudice in this case as it led
to oppressive pretrial confinement, it was not the only source. The uncontrolled
presence of the virus in the local jails comes alongside other forms of prejudice due
to restrictions on liberty and the ability to prepare for trial. United States v.
Clymer, 25 F.3d 824, 832 (9th Cir. 1994) ([E]ven a delay of five months strongly
implicates the serious concerns articulated by Justice White in his concurring
opinion in Barker v. Wingo . . . .”).
16
Clearly the deprivation of Battle’s liberty, while under the presumption of
innocence (and beyond), did “disrupt his employment”, did “drain his financial
resources” due to the loss of his job as a truck driver, an essential service during
the pandemic, did “curtail his associations”, did “subject him to public obloquy”,
and did “create anxiety in him” and in “his family.” See United States v. Taylor,
487 U.S. 326, 340 (1988).
Combining actual prejudice in its various forms with Battle’s loss of
opportunity to contact witnesses essential to his defense explains, in part, the
timing of his conditional plea allowing him to proceed with the direct appeal on an
expedited basis, and provides additional support for finding that he has “paid a
significant debt to society.” This Court can therefore find that the government
“should not be permitted to reprosecute” him. United States v. Clymer, 25 F.3d
at 833.
4.
Inter-Circuit Splits Support Grant of the Petition
The petition for certiorari in Olsen identified differences in treatment among
the circuits regarding ends of justice findings and the burden of proof when finding
exceptions to the 6th Amendment and the Speedy Trial Act. Brief of PetitionerAppellee at *28-29, Olsen v. United States, No. 21-1336 (9th Cir. Apr. 5, 2022),
2022 WL 1057005. They include the following:
17
The Ninth Circuit stands alone in requiring the defendant to bear the burden
of proof when opposing a government motion to continue the trial. Other circuits
which have addressed this issue find that the movant, regardless of who that party
is, bears the burden of showing that the ends of justice prevail over the rights of the
defendant and the public. Brief of the Petitioner (Olsen), Id. at *28; see United
States v. Burrell, 634 F.3d 284, 287 (5th Cir. 2011); United States v. Gonzalez, 137
F.3d 1431, 1435 (10th Cir. 1998); United States v. Kelly, 36 F.3d 1118, 1126 n.5
(D.C. Cir. 1994); United States v. New Buffalo Amusement Corp., 600 F.2d 368,
375 (2nd Cir. 1979).
While the Ninth Circuit permits ends of justice findings based upon a district
court’s pronouncements in general orders or local rules, every other circuit to
address this issue calls for case-specific findings. Brief of the Petitioner (Olsen),
Id. at *28; see United States v. Huete-Sandoval, 668 F.3d 1, 5 (1st Cir. 2011);
United States v. Dignam, 716 F.3d 915, 921 (5th Cir. 2013); United States v. Henry,
538 F.3d 300, 303 (4th Cir. 2008).
Open-ended trial continuances under certain conditions have been found to
be acceptable in some circuits. See United States v. Barnes, 159 F.3d 4, 13 n.5 (5th
Cir. 1995); United States v. Lattany, 982 F.2d 866, 881 (3rd Cir. 1992); United
States v. Jones, 56 F.3d 581, 585-86 (5th Cir. 1995); United States v. Spring, 80
18
F.3d 1450, 1458 (10th Cir. 1996). Yet none have gone so far as to permit a districtwide ban without discernable end dates. Brief of the Petitioner (Olsen), Id. at *29;
see also United States v. Gambino, 59 F.3d 353, 358 (2nd Cir. 1995) (ends of justice
continuance must be “limited in time” at which point the “trial court should set at
least a tentative trial date.”).
Finally, contrary to the position taken in Battle’s circuit, when a violation is
shown, the majority view permits dismissal of the indictment with prejudice
regardless of whether the prosecution or the district court is at fault for the delay.
Brief of Petitioner (Olsen), Id. at *29; United States v. Bert, 814 F.3d 70, 80-81 (2nd
Cir. 2016); United States v. Blank, 701 F.3d 1084, 1089 (5th Cir. 2012); United
States v. Ramirez, 973 F.2d 36, 39 (1st Cir. 1992).
A uniform ruling from this Court is appropriate and timely since any delay of
decision will adversely effect those, including Battle, who have languished in
pretrial custody since the pandemic.
///
///
///
19
CONCLUSION
For the foregoing reasons petitioner respectfully submits that the petition for
writ of certiorari should be granted.
Dated: May 19, 2023
Respectfully Submitted,
_______________________
Thomas P. Sleisenger
Attorney for Petitioner
20
APPENDIX “A”
Case: 21-50221, 02/22/2023, ID: 12658265, DktEntry: 47-1, Page 1 of 4
FILED
NOT FOR PUBLICATION
FEB 22 2023
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No.
U.S. COURT OF APPEALS
21-50221
D.C. No.
5:20-cr-00190-JGB-1
v.
DAVID ANTHONY BATTLE,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Submitted February 14, 2023**
Pasadena, California
Before: O’SCANNLAIN, HURWITZ, and BADE, Circuit Judges.
David Anthony Battle pleaded guilty to violating the Hobbs Act, 18 U.S.C.
§ 1951(a), reserving the right to appeal the district court’s denial of his motion to
dismiss the indictment for pretrial delay. We have jurisdiction over Battle’s appeal
under 28 U.S.C. § 1291 and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Case: 21-50221, 02/22/2023, ID: 12658265, DktEntry: 47-1, Page 2 of 4
1. Under the Speedy Trial Act, Battle’s trial was originally required to
commence by December 16, 2020, seventy days after the indictment was filed. See
18 U.S.C. § 3161(c)(1). The district court twice continued trial, first from November
30, 2020, to February 16, 2021, and then to April 6, 2021, each time finding that the
ends of justice outweighed the public and Battle’s interest in a speedy trial. See id.
§ 3161(h)(7)(A).
“A district court’s finding of an ends of justice exception will be reversed only
if there is clear error.” United States v. Henry, 984 F.3d 1343, 1350 (9th Cir. 2021)
(cleaned up). We find none. Although the continuances were granted before we
identified various factors that “in the context of the pandemic, facilitate[] the proper
balancing” for an ends-of-justice continuance, United States v. Olsen, 21 F.4th 1036,
1046–47 (9th Cir. 2022) (per curiam), the district court’s orders recognized the most
relevant factors. In particular, 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 1049.
Moreover, neither continuance was “open-ended.” United States v. Clymer,
25 F.3d 824, 828 (9th Cir. 1994). Each was of fixed duration and cited Central
2
Case: 21-50221, 02/22/2023, ID: 12658265, DktEntry: 47-1, Page 3 of 4
District of California General Order 20-09, which provided for resumption of jury
trials “based on 14-day trends of facility exposure, community spread, and
community restrictions.” Even if, as Battle argues, other courts were resuming trial
during part of the relevant period, that “does not mean that they [were] necessarily
holding them safely. It is unknown whether jurors, witnesses, court staff, litigants,
attorneys, and defendants [were] subject to serious risks and illness.” Olsen, 21
F.4th at 1047 n.10.
2. “[I]t will be an unusual case in which the time limits of the Speedy Trial
Act have been met but the sixth amendment right to speedy trial has been violated.”
United States v. King, 483 F.3d 969, 976 (9th Cir. 2007) (cleaned up). Applying the
factors identified in Barker v. Wingo, 407 U.S. 514, 530 (1972), we conclude that
this is not such a case. Battle’s plea hearing was 183 days after his federal arrest,
and most courts treat eight months as “the threshold minimum to initiate the full
Barker inquiry.” United States v. Lonich, 23 F.4th 881, 893 (9th Cir. 2022) (cleaned
up). Battle does not claim prosecutorial culpability in the delay, see Olsen, 21 F.4th
at 1048, and the only prejudice he claims flows from his six-month incarceration
during the delay. However, even ten months of pretrial detention does not establish
“serious prejudice.”
Barker, 407 U.S. at 534.
And, even crediting Battle’s
contention that the COVID-19 pandemic made detention more difficult than normal,
he does not claim to have been infected before pleading guilty or to have faced
3
Case: 21-50221, 02/22/2023, ID: 12658265, DktEntry: 47-1, Page 4 of 4
different conditions than other pretrial detainees.
AFFIRMED.
4
APPENDIX “B”
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.