United States v. Olsen

622 F.Supp.3d 856

UNITED STATES of America, Plaintiff, v. Jeffrey OLSEN, Defendant.

Case No.: SACR 17-00076-CJC

United States District Court, C.D. California, Southern Division

Signed August 22, 2022

Bryant Yuan Fu Yang, Assistant US Attorney, AUSA - Office of US Attorney Intl Narcotics Money Laundering and Racketeering Section, Los Angeles, CA, Samuel Jose Diaz, Assistant US Attorney, AUSA - Office of US Attorney General Crimes Section, Los Angeles, CA, for Plaintiff.

ORDER GRANTING DEFENDANT'S SUPPLEMENTAL MOTION TO DISMISS INDICTMENT WITH PREJUDICE [Dkt. 133]

CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE

I.

"Even in a pandemic, the Constitution cannot be put away and forgotten." Roman Catholic Diocese of Brooklyn v. Cuomo, — U.S. —, 141 S. Ct. 63, 68, 208 L.Ed.2d 206 (2020). This case presents questions about the constitutional rights of the accused during a global pandemic—specifically, the Sixth Amendment's guarantee of a right to a speedy trial and the Speedy Trial Act's codification of that right. Undoubtedly, the COVID-19 pandemic has been one of the most challenging periods in recent memory. With millions of infections and tragic deaths, COVID-19 thrusted the world into uncertainty and fear. But there are some aspects of our society that, even in the face of a pandemic, cannot stop, pause, or suspend. Chief among them is our legal system with the United States Constitution as its apex. No matter the challenge, the Constitution's principles and guarantees must endure, and the judiciary must do what it can to protect them.

Sadly, the Central District of California abdicated its duty to defend the Constitution in its response to COVID-19. In March 2020, when COVID-19 hit Southern California and the number of people infected began to dramatically increase, the Central District issued a general order temporarily suspending criminal jury trials during the early months of the pandemic. But then, in August 2020, the Central District continued to suspend criminal jury trials indefinitely through another general order, believing that it was still necessary to mitigate the risks that the virus posed. Jury trials did not resume until May 2021. From beginning to end, the Central District's suspension of jury trials lasted fourteen months. The Central District explained its choice to continue to suspend jury trials indefinitely in just four sentences in the three-page general order, decreeing that the "ends of justice" outweighed every individual's right, the government's right, and the public's right to a speedy trial. Troublingly, the decision was not based on a directive or recommendation from a local public health official. Nor was this decision based on a directive or recommendation from the Governor of California. In fact, the August general order provides no specific evidence, facts, or figures to justify the length of the delay it imposed.

Here is the reality. As the government sought continuances in jury trials across the Central District because of the August general order, arguing that it was not safe to hold a trial, the government was convening the grand jury just floors down from where this Court sits. As the suspension of jury trials dragged on for over a year in federal court, state courts across the Central District were open, holding jury trials safely and successfully for many months. Essential and non-essential businesses alike operated during the pandemic, with appropriate modifications. But the Central District refused to revisit its decision to suspend jury trials indefinitely, even when confronted with local public health guidance and ample evidence that jury trials could resume—and had resumed—safely. That refusal violated the Constitution and the Speedy Trial Act.

So what happens when efforts to keep the public safe result in unconstitutional infringements upon our most sacred rights? Should our legal system attempt to remedy the infringement when the evidence shows that it should never have happened in the first place? Or should we just let it go? The questions presented in this case are significant. The answers are important and bear directly on the role of the judiciary in times of crisis and the rule of law itself.

The defendant here, Jeffrey Olsen, sought to invoke his right to a speedy trial during the pandemic. Without proper justification, the Central District prevented him from invoking that right in violation of the Sixth Amendment and the Speedy Trial Act. The remedy for such violations is clear. The indictment against him must be dismissed and dismissed with prejudice.

II.

On July 6, 2017, Jeffrey Olsen was indicted with thirty-four counts of prescribing and distributing prescription substances, including oxycodone, amphetamine salts, alprazolam, and hydrocodone, without a legitimate medical purpose. (Dkt. 1.) Mr. Olsen was also charged with one count of knowingly and intentionally furnishing false and fraudulent material information in an application submitted to the U.S. Drug Enforcement Agency. (Id.) Mr. Olsen was arrested, booked, and arraigned, and pled not guilty to all counts. (Dkts. 8-10.) He subsequently filed a Statement of Defendant's Constitutional Rights, in which he was informed that he was "entitled to a speedy and public trial by jury." (Dkt. 11.) In accordance with the time limits prescribed by the Speedy Trial Act, trial was set for September 5, 2017. (Dkt. 10.) Mr. Olsen was then released on a $20,000 bond. (Dkt. 14.)

Courtney E. Pilchman and Anita A. Kay, then Mr. Olsen's defense counsel, sought a series of continuances that pushed the trial date to June 18, 2019, explaining that they needed more time to prepare Mr. Olsen's defense due to the complexity of the charges and the vast amount of discovery in the case. (Dkts. 18-21, 26.) A few months after obtaining the fourth continuance, counsel filed an ex parte application to withdraw as attorneys of record. (Dkt. 27.) Ms. Pilchman explained that there were "serious differences of case strategy that c[ould] not be reconciled" between Mr. Olsen and counsel and that one of his attorneys, Ms. Kay, had "recently been hospitalized for serious medical reasons and [was] incapable of working." (Id. at 2.) Attached to the application was a letter from Mr. Olsen in which he explained that he supported changing his representation due to: (1) a lack of funds for his defense; (2) dissatisfaction with the status of investigative discovery in his case; and (3) an overall lack of satisfaction with his representation. (Id. at 3.) The Court granted the ex parte application and appointed a federal public defender as his counsel. (Dkt. 28.)

Dealing with a change of counsel, Mr. Olsen's newly appointed public defender requested the trial be continued to October 28, 2019. (Dkt. 35.) Mr. Olsen's new counsel later requested to continue the trial date further, explaining that upon her "initial review of the discovery," she "realized that the majority of files [that the government provided in discovery] were either not copied or corrupted," requiring her to wait for the government to send new copies. (Dkt. 36 ¶ 3.) She also explained that significant resources needed to be devoted to the case because "[t]he 35-count Indictment alleges conduct that spans over three years and includes forfeiture allegations. The discovery contains roughly 77,000 files . . . includ[ing] recordings of undercover patient visits and thousands of prescriptions for patients named in the Indictment, as well as patients not named in the Indictment." (Id. ¶4.) Counsel represented that since her initial appearance in the case, she had worked diligently, but "the sheer amount of discovery" was simply overwhelming, and she could not complete everything necessary in the amount of time until the then-set trial date. (Id. ¶¶ 7-8.) She also made clear that thousands of discovery documents were "handwritten prescription and payments" not "easily converted to a searchable format, so each page must be reviewed and renamed individually." (Id. ¶ 8.) Complicating matters further was a protective order that forbade Mr. Olsen from reviewing the tens of thousands of pages of discovery except in his attorney's office or with a member of his defense team. (Id. ¶ 9.) Defense counsel also represented that the government began investigating Mr. Olsen in January 2011, approximately six years before the indictment was filed, leaving plenty of time to investigate the case, whereas Mr. Olsen's defense counsel at that point had a grand total of four months. (Id. ¶ 11.) Over the government's objection, the Court granted the ex parte application and continued the trial to May 5, 2020. (Dkts. 40, 42.)

On March 23, 2020, the parties stipulated to a seventh continuance due to defense counsel's other related pending trials and the need for additional time to prepare for the case. (Dkt. 43.) The Court approved the stipulation and set the trial for July 21, 2020. (Dkt. 44.) On June 18, 2020, the parties again filed a stipulation to continue the trial from July 21, 2020, to October 13, 2020, which the Court approved. (Dkt. 46.)

When the COVID-19 pandemic hit Southern California and the number of people infected began to dramatically increase, the Central District began issuing a series of "emergency orders," each entered upon a unanimous or majority vote of Central District judges, suspending jury trials indefinitely. Jury trials did not resume in the Southern Division of the Central District until fourteen months later—on May 10, 2021.¹

The first order suspending jury trials in the Central District was issued in March 2020. Neither the Court nor the parties dispute that it was appropriate and necessary to suspend jury trials during the early months of the pandemic. The second order and the one most relevant to this case was General Order 20-09, issued on August 6, 2020 (hereinafter "G.O. 20-09").² (Dkt. 129 [Defendant's Request for Judicial Notice], Ex. 6 [General Order No. 20-09 (C.D. Cal. Aug....