JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

Vincenza Rabenn, Govt, United States Attorney's Office, Sacramento, CA, for Plaintiff.

Noa Oren, Benjamin David Galloway, Office Of The Federal Defender, Sacramento, CA, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

Defendant Reginald Smith moves to dismiss the indictment for violation of the Speedy Trial Act ("STA") by post-indictment delay. Mot. to Dismiss ("Mot."), ECF No. 43. The Government has responded in opposition, Opp'n, ECF No. 50, to which Smith has replied, Reply, ECF No. 52. After consideration of the parties’ briefing on the motion and relevant legal authority, the Court DENIES Smith's Motion to Dismiss.

I. BACKGROUND

On December 5, 2019, a grand jury indicted Smith, charging him with one count of Possession with Intent to Distribute Methamphetamine, 21 U.S.C. § 841(a)(1), (b)(1)(B), and one count of Possession of a Firearm in Furtherance of a Drug Trafficking Crime, 21 U.S.C. § 853(a). See ECF No. 1. Two weeks later, Smith made an initial appearance before the magistrate judge. He entered a not guilty plea, demanded a jury trial, and was taken into custody. Dec. 19, 2019 Mins., ECF No. 4. Pretrial services then issued a bail report. The report highlighted Smith's history of substance abuse and violent crime. It ultimately concluded that, at the time, there was no condition, or combination of conditions, that could be fashioned to reasonably assure Smith's appearance at future court proceedings or the safety of the community. On December 23, the magistrate judge held a detention hearing. Based on Pretrial Services’ recommendation, she issued an order of detention pending trial. ECF No. 7. Smith remains in custody.

During the period Smith has been in custody, time has been excluded under the STA for several different reasons. Smith agreed to exclusions of time for defense preparation, pursuant to 18 U.S.C. § 3161(h)(7) (also known as "Local Code T4"), from December 19, 2019 to April 14, 2020. See ECF Nos. 4, 10, 11. In March, the Eastern District of California began issuing general orders, restricting the Court's operations, to help minimize the spread of COVID-19. See Information Re: COVID-19 and Court Operations, Restrictions, and Closures, http://www.caed.uscourts.gov/caednew/index.cfm/news/covid-19-courthouse-closure-and-court-hearing-information/. Keeping in compliance with these orders, on March 23, 2020, the Court continued Smith's April 14, 2020, status conference to June 16, 2020. See ECF No. 12.

On May 1, 2020, the Government moved to exclude time from April 14, 2020, to June 16, 2020, under the STA's "ends of justice" exclusion. See ECF No. 13; see also 18 U.S.C. § 3161(h)(7)(A). The Court granted in part and denied in part the Government's motion. See Order, ECF No. 18. The Court could not retroactively exclude time under the ends-of-justice exclusion, so time was not excluded from April 15, 2020, to April 30, 2020. However, the Court excluded time between May 1, 2020, and May 19, 2020—the day the Order was issued—pursuant to 18 U.S.C. § 3161(h)(1)(D). And the Court prospectively excluded time under the ends-of-justice exclusion from the date of its Order until Smith's June 16, 2020, status conference.

On May 26, 2020, Smith filed a motion to suppress. See ECF No. 19. This tolled Smith's speedy trial clock from May 26, 2020, until July 27, 2020, the date the Court decided the motion, pursuant to 18 U.S.C. § 3161(h)(1)(D). Then on July 27, 2020, the Government filed another motion to exclude time under the ends-of-justice exclusion. See ECF No. 37. And on August 25, 2020, Smith filed the instant motion to dismiss and another motion to suppress. See ECF Nos. 43, 44. The Court decided Smith's second motion to suppress on September 18, 2020, see ECF No. 54; and granted the Government's motion to exclude time between August 20, 2020, to September 22, 2020, pursuant to § 3161(h)(1)(D), as motions were pending, see ECF No. 55. The time between September 22, 2020, and the date of this Order is also excludable under § 3161(h)(1)(D).

II. OPINION

A. Speedy Trial Act

1. Legal Standard

Congress enacted the STA, in part, to codify the strong public interest in speedy justice. United States v. Pollock, 726 F.2d 1456, 1459–60 (9th Cir. 1984). But it was also born out of Congress's "concern[ ] about a number of problems ... that vex an individual who is forced to await trial for long periods of time." Id. (citing H.R. Rep. No. 1508, 93rd Cong. 2d Sess., reprinted in [1974] U.S. Code Cong. & Ad.News 7401, 7408). These problems include: "disruption of family life, loss of employment, anxiety, suspicion, and public obloquy." Id. To address these correspondent concerns, the STA sets strict time limits on the two phases of prosecution: the time period between arrest/service of summons and an indictment ("Phase 1"), and the time period between arraignment and trial ("Phase 2"). Absent an exclusion of time, Phase 1 cannot exceed 30 days and Phase 2 cannot exceed 70 days. 18 U.S.C. § 3161(b), (c). If a defendant is not brought to trial within these time limits, "the information or indictment shall be dismissed on motion for the defendant." 18 U.S.C. § 3162(a)(2).

Section 3161(h) sets forth permissible grounds for excluding time under the STA. One of these grounds is now commonly referred to as an ends-of-justice exclusion. Provided by subsection (h)(7), this exclusion permits defendant, defense counsel, and the government's counsel to seek an ends-of-justice continuance. 18 U.S.C. § 3161(h)(7)(A). A court may also grant an ends-of-justice continuance on its own motion. Id. Regardless of who seeks the continuance, a court must satisfy itself of each of § 3161(h)(7) ’s requirements before granting the motion.

Regarding its duration, an ends-of-justice exclusion must be "specifically limited in time." United States v. Ramirez-Cortez, 213 F.3d 1149, 1154 (9th Cir. 2000). Although § 3161(h)(7) permits district courts to exclude "any period of delay," the Ninth Circuit has underscored that this temporal flexibility does not permit an ends-of-justice continuance to be indefinite. United States v. Jordan, 915 F.2d 563, 565 (9th Cir. 1990) ; Pollock, 726 F.2d at 1461. Moreover, an ends-of-justice continuance must be "justified [on the record] with reference to the facts as of the time the delay is ordered." Ramirez-Cortez, 213 F.3d at 1154 (emphasis in original) (internal quotation marks omitted). After independently considering factors listed in § 3161(h)(7)(B), "among others," a court must determine whether "the ends of justice served [by granting a continuance" outweigh "the best interest of the public and the defendant in the speedy trial." 18 U.S.C. § 3161(h)(7)(A).

The STA "imposes strict specificity requirements" on these findings. United States v. Lloyd, 125 F.3d 1263, 1268 (9th Cir. 1997). "[T]he ‘ends of justice’ exclusion ... may not be invoked in such a way as to circumvent the time limitations set forth in the [STA]." United States v. Clymer, 25 F.3d 824, 829 (9th Cir. 1994). The ends-of-justice provision "is not a general exclusion for every delay, and any continuance granted under it must be based on specific underlying factual circumstances." United States v. Martin, 742 F.2d 512, 514 (9th Cir. 1984). Courts are not entitled "to rely on the unverified claims" of the party seeking a continuance. Id. at 1270. Nor may they conclude that one of the § 3161(h)(7)(B) factors justifies a continuance without tethering that conclusion to case-specific considerations. United States v. Perez-Reveles, 715 F.2d 1348, 1352 (9th Cir. 1983) ("although the complexity of the case is a permissible factor ... the mere conclusion that the case is complex is insufficient.").

A court must set forth these findings on the record, either orally or in writing. 18 U.S.C. § 3161(h)(7)(A) ; see also Zedner v. United States, 547 U.S. 489, 509, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006) ; Ramirez-Cortez, 213 F.3d at 1153. A court need not issue its specific findings "at the precise moment it grants a[n ends-of-justice] continuance." United States v. Bryant, 726 F.2d 510, 511 (9th Cir. 1984). That said, § 3161(h)(7) ’s analysis is a forward-looking inquiry. "A court may not, ‘subsequent to the grant of a continuance, undertake for the first time to consider the factors and provide the findings required by [ § 3161(h)(7)(A) ].’ " Jordan, 915 F.2d at 566 (quoting United States v. Frey, 735 F.2d 350, 352 (9th Cir. 1984) ); see also Frey, 735 F.2d at 352 (holding that a district court may not make nunc pro tunc ends-of-justice findings to accommodate an "unwitting violation of the [STA].").

2. STA Violation

As a preliminary matter, a statutory violation of the STA has not yet occurred in this case. The STA mandates dismissal of the indictment upon defendant's motion if the seventy-day limitations period is exceeded. 18 U.S.C. § 3162(a)(2). Not counted toward the limitations period is any time rightfully excluded under § 3161(h). Id. In making this determination, the Court must first ascertain when the seventy-day clock began running. United States v. Wirsing, 867 F.2d 1227, 1229 (9th Cir. 1989). Smith's indictment was returned on December 5, 2019. As described above, it is clear that given the amount of time properly excluded since Smith was indicted and made his initial appearance, seventy days of non-excludable time have not passed as of the date of this Order.

Accordingly, Smith's statutory rights under the STA have not yet been violated. See Wirsing, 867 F.2d at 1231 (the Ninth Circuit held that, accounting for excludable days, the district court properly denied defendants’ motions to dismiss as the limitations period had not been exceeded).

3. Ends-of-Justice

Although there is time remaining on Smith's speedy trial clock, it is readily apparent that at this stage of the pandemic additional delay is inevitable and Smith cannot receive a jury trial within the time prescribed by the STA. The Court therefore must decide whether another ends-of-justice continuance in this case should be applied. Before applying an ends-of-justice continuance, a judge must find "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). Because § 3161(h)(7)(A) requires this balancing to be case-specific, the Court cannot, and does not, find that considerations surrounding COVID-19's impact on public safety and the Court's operations will, in every case, outweigh the best interest of the defendant and the public in a speedy trial. And although ends-of-justice interests and speedy-trial interests are concededly abstract, courts must nevertheless attempt to define them in each case and assess which set of interests is weightier under the circumstances. The factors set forth in § 3161(h)(7)(B), "among others," aid in this analysis.

a. Impossibility - § 3161(h)(7)(B)(i)

The Court must first consider whether its failure to apply an ends-of-justice continuance "would be likely to make a continuation of [the] proceedings impossible, or result in a miscarriage of justice." 18 U.S.C. § 3161(h)(7)(B)(i). This factor weighs in favor of granting a continuance. The state of California, and this district, are still heavily impacted by COVID-19. On October 7, 2020, 3,575 new COVID-19 infections were confirmed in California. See https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx. The state now has had a total of 834,800 positive cases. Id. As a result, state and local restrictions are still in effect. Although this district's general orders grant each judge discretion on when to resume in-person proceedings, it is not possible to predict with absolute certainty when an in-person jury trial can safely occur in this Court. However, the undersigned does not agree with Smith that this delay is indefinite. This Court is confident that jury trials will resume in 2021.

If the Court does not apply another ends-of-justice continuance, Smith's speedy trial clock will soon expire. At that point, the Court will have no choice but to dismiss the charges brought against him. See 18 U.S.C. § 3162(a)(2). While the Government may sometimes re-indict a defendant on previously-dismissed charges, re-indictment could prove to be a difficult—if not impossible—task. See Zedner, 547 U.S. at 499, 126 S.Ct. 1976 (citing 18 U.S.C. § 3288) (a new indictment may be returned only if the charges are dismissed without prejudice and the defendant is re-indicted within six calendar months of the date of the dismissal). Consequently, the Court finds its failure to grant an ends-of-justice continuance in this case "would be likely to make a continuation of [this] case impossible." 18 U.S.C. § 3161(h)(B)(i). b. Complexity - § 3161(h)(7)(B)(ii)

Courts must also assess whether a case "is so unusual or so complex ... that it is unreasonable to expect adequate preparation for pretrial proceedings or for the trial itself" within the STA's prescribed limits. 18 U.S.C. § 3161(h)(7)(B)(ii). The "number of defendants, the nature of the prosecution, or the existence of novel questions of fact or law" may give rise to a Court's complexity finding. Id. Neither party contends this case is complex nor does the Court find it to be so. Indeed, it involves two relatively straightforward charges against a single defendant. The nature of the proceedings weighs in favor of Smith and the public's interest in a speedy trial.

c. Pre-Indictment Delay - § 3161(h)(7)(B)(iii)

In cases where an arrest precedes indictment, courts must consider whether a delay in filing the indictment was caused by one of two circumstances: (1) the arrest occurred "at such a time that it is unreasonable to expect return and filing of the indictment" within the STA's time limits, or (2) "the facts upon which the grand jury must base its determination are unusual or complex." This factor has no bearing on this case's analysis or the Court's ends of justice determination here.

d. Competency/Continuity of Counsel - § 3161(h)(7)(B)(iv)

Section 3161(h)(B)(iv) requires courts to consider counsels’ ability to prepare and present their case, even when the case is not so complex that it bears independent consideration under the "complexity" factor. Under this factor, courts must ask whether not applying an ends-of-justice continuance would (1) deny the defendant reasonable time to obtain counsel, (2) "unreasonably deny" either party continuity of counsel, or (3) deny either parties’ counsel "reasonable time necessary for effective preparation, taking into account the exercise of due diligence." 18 U.S.C. § 3161(h)(7)(B)(iv).

COVID-19 has no doubt impacted counsels’ ability to prepare and present their case. But the difficulties posed by the pandemic are not specific to this case. Instead, when invoking this provision, "[t]he government should [offer] something about the specific people and documents involved in the underlying case, why they were unavailable, or what information they were looking for they lacked access to because of teleworking or other conditions created by COVID-19." Elms v. United States, 457 F.Supp.3d 897, 901 (D. Nev. 2020). The Government does not anticipate the spread of COVID-19 will impede trial preparation. See Opp'n at 9–10. This factor, therefore, weighs in favor of Smith's and the public's speedy trial rights.

e. "Other" Factors - § 3161(h)(7)(B)

Section 3161(h)(7)(B) instructs that judges must consider the enumerated factors, "among others." Other than the prohibited considerations discussed below, the statute is silent about what non-statutory factors judges should consider. The Court interprets this silence as conferring broad discretion to consider factors it deems relevant based upon the specific facts of the case and surrounding circumstances. Indeed, in Lloyd, the Ninth Circuit criticized the district court for failing to take non-statutory considerations into account. 125 F.3d at 1269 (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 caselaw surrounding COVID-19 ends-of-justice continuances remains surprisingly sparse. The caselaw that does exist provides little guidance as to what non-statutory factors the Court should consider under these circumstances. Nonetheless, the Court finds the following factors relevant:

• Whether the defendant is detained pending trial;

• Whether COVID-19 is present in the facility where the defendant is detained (and if so, whether the defendant belongs to a population that is particularly susceptible to complications if infected with the virus);

• Whether the court can safely conduct a jury trial;

• Whether the defendant has invoked his speedy trial rights since the case's inception;

• How long the defendant has been detained;

• Whether the defendant is charged with a violent crime or has a history of violent crime;

• Whether the defendant was denied bail solely because of the risk of nonappearance; and

• Whether there is a specific reason to suspect recidivism if charges are dismissed.

Arguably a defendant's interest in a speedy trial is greater when he is detained awaiting trial, is detained in dangerous conditions, has invoked his speedy trial rights since the case's inception, and/or has been detained for a particularly long period of time. Alternatively, the ends of justice served by excluding time under the STA are higher when the court lacks the ability to safely hold a jury trial, when a defendant is charged with a particularly violent crime, and when there are other indications that a defendant may pose a danger to society or recidivate if the STA clock runs and the charges are dismissed.

First, the Court acknowledges that Smith has been in either state or federal custody on these charges for over a year. However, all parties acknowledge that the Court is currently unable to safely hold a jury trial at this time. As before, the counties that make up the Eastern District of California are reporting new COVID-19 cases, along with new COVID-19-related deaths. There is still no reliable treatment, cure, or vaccine for COVID-19. Based on current circumstances and the uncertainty that still looms large around COVID-19 and how to effectively treat it, the Court finds it reasonable to conclude that it will not be able to safely hold jury trials for the remainder of 2020. The Court's current and continued inability to hold trials in a way that does not put the public, the parties, court staff and counsel at serious risk weighs in favor of applying another continuance.

Smith first invoked his speedy trial rights on May 8, 2020, see ECF No 15, and has done so again with the filing of this motion on August 25, 2020, see ECF No. 43. He is currently housed in the Sacramento County Jail ("SCJ"), where COVID-19 infections have been detected. How many infections—the Court cannot say. SCJ's failure to report infection rates makes it impossible for the Court to determine the severity of the spread.

But Smith is in custody on charges of possession with intent to distribute methamphetamine and possession of a firearm in furtherance of this offense. In 2003, Smith was convicted of two counts of voluntary manslaughter and one count of assault with possession of a firearm. He received a twelve-year prison sentence. Smith was indicted for the present gun-related offense four years after his release.

At Smith's detention hearing, the magistrate judge ordered he remain detained pending trial given (1) his criminal history, (2) the lengthy period of incarceration he faces if convicted, and (3) unknown or unverified background information. See Order of Detention, ECF No. 9. The Court cannot ignore the magistrate judge's reasoned decision, and a motion to dismiss is not the appropriate way to reconsider it. See Opp'n at 11. Smith's track record of violent crime, and the magistrate judge's determinations, weigh in favor of applying an ends-of-justice continuance. In addition, Smith is relatively young, and the Court has no reason to believe he has underlying medical conditions that place him at heightened risk of complications if infected with COVID-19. In short, public safety considerations in this case outweigh the primary factors that weigh in Smith's favor—pretrial detention and detection of COVID-19 at the Sacramento County Jail—and lead this Court to conclude that a further ends of justice continuance does not violate Smith's STA rights.

f. Prohibited Considerations - § 3161(h)(7)(C)

The STA bars judges from applying ends-of-justices continuances based on (1) "general congestion of the court's calendar," (2) the Government's "lack of diligent preparation," or (3) the Government's "failure to obtain available witnesses." 18 U.S.C. § 3161(h)(7)(C). The Ninth Circuit has also held that the negotiation of a plea bargain is not a factor that may support applying an ends-of-justice continuance. Ramirez-Cortez, 213 F.3d at 1156 (citing Perez-Reveles, 715 F.2d at 1352 ). The Court has not taken any of these prohibited considerations into account.

g. Conclusion

After carefully weighing the specific case factors discussed above, the Court finds that the ends of justice served by applying an exclusion of time continue to outweigh Smith and the public's interests in a speedy trial. The Court is confident that it will resume jury trials sometime in 2021 and therefore any time excluded will not be indefinite. Applying its most conservative and best estimate (which is all the Court can do under these extraordinary and unusual circumstances), the Court sets this case for jury trial on June 7, 2021 at 9:00 a.m. The Court further sets a trial confirmation hearing for April 20, 2021 at 9:30 a.m. This trial date is set with the understanding that, if jury trials resume prior to June 7, 2021, the Court will advance this trial to an earlier date mutually convenient to the parties.

Accordingly, the Court, on its own motion, hereby orders that the time from the date of this Order, through June 7, 2021, shall be excluded from computation under the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A).

B. Sixth Amendment

1. Legal Standard

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ...." U.S. Const. amend. VI. This right attaches upon arrest or indictment, whichever occurs first. See United States v. MacDonald, 456 U.S. 1, 6–7, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). For Sixth Amendment purposes, Smith is entitled to a computation of time from December 5, 2019, the date of his indictment. To determine whether a defendant has been deprived of the Sixth Amendment right to a speedy trial, courts weigh the four Barker factors which include: "(1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) the prejudice resulting from the delay." United States v. Nance, 666 F.2d 353, 360 (9th Cir. 1982) (citing Barker v. Wingo, 407 U.S. 514, 531–33, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ).

"Courts balance all four of these factors in a practical, case-by-case analysis under Barker." United States v. Myers, 930 F.3d 1113, 1120 (9th Cir. 2019). None of the four factors is "either a necessary or sufficient condition" in determining whether a defendant's speedy trial rights have been violated. Id. (citing Barker, 407 U.S. at 533, 92 S.Ct. 2182 ). Instead, the factors are all related and must be considered together along with any other relevant circumstances. Id.

The Court has found that the STA has not been violated. But this does not necessarily preclude a court from finding a violation of the defendant's Sixth Amendment right to a speedy trial. The STA itself provides that none of its provisions "shall be interpreted as a bar to any claim of denial of a speedy trial as required by amendment VI of the Constitution." 18 U.S.C. § 3173. However, it would be "an unusual case in which the time limits of the [STA] have been met but the [S]ixth [A]mendment right to speedy trial has been violated." Nance, 666 F.2d at 360.

2. Analysis

a. Length of Delay

The Barker inquiry begins by considering whether the time between accusation—whether by arrest or indictment—and trial "has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay." Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (quoting Barker, 407 U.S. at 530–31, 92 S.Ct. 2182 )). Only if the accused makes this showing, does the Court go on to consider the other Barker factors. Id. at 651–52, 112 S.Ct. 2686. There is no bright-line time limit dividing the lengths that trigger further Barker inquiry from those that do not, however, a delay of around one year is considered presumptively prejudicial, and the presumption that delay prejudices the defendant intensifies over time. Id. at 652, 112 S.Ct. 2686 ; United States v. Gregory, 322 F.3d 1157, 1161–62 (9th Cir. 2003).

Smith has been in federal pretrial custody for nine months now. Given the June 2021 trial date set by the Court, his trial will be delayed by more than a year. This delay is presumptively prejudicial and clearly suffices to trigger the remainder of the Barker inquiry. See id. at 1161–62.

b. Reasons for the Delay

The length of the delay alone is not determinative. "Among other things, a court may consider whether the [G]overnment or the criminal defendant is more to blame for the delay." Myers, 930 F.3d at 1119. If the delay is more attributable to the defendant, he is deemed to have waived the right to a speedy trial. Id. By contrast, if the Government has acted in bad faith in causing the delay, it must be "weighted heavily against the [G]overnment." Id. (internal quotation marks and citation omitted). Most relevant here, "a good-faith, reasonable justification for the delay, such as a missing witness [ ], or a meritorious interlocutory appeal [ ], will weigh less heavily against the [G]overnment or not weigh against the [G]overnment at all." Id. at 1119–20 (citations omitted).

Smith does not contend the Government has attempted "to delay the trial in order to [either] hamper the defense," "gain some tactical advantage," or "harass [him]." Barker, 407 U.S. at 531 n.32, 92 S.Ct. 2182. That said, the Court does not consider Smith's decision to file motions to suppress to be a reason to blame him for the delay. The Court finds the delay to be neither attributable to the Government nor Smith. Instead, the Court's decision to take responsible, emergency health measures to limit the spread of COVID-19 is responsible for the delay. The Court's inability to safely conduct a jury trial is a good-faith and reasonable justification for the delay. One that does not weigh against the Government. c. Responsibility to Assert the Right

The third Barker factor is whether the defendant asserted his right to a speedy trial. If the defendant fails to assert the right, it will be difficult, but not impossible, for him to prove he was denied a speedy trial. Myers, 930 F.3d at 1120 (internal quotation marks and citation omitted). Smith invoked his speedy trial rights on May 8, 2020, and again on August 25, 2020. See ECF Nos. 15, 43. Smith's decision to assert his right not long after the time period his attorney required for defense preparation, when it became apparent that a jury trial would not be available to him for some time, strikes the Court as reasonable. Accordingly, this factor does not weigh against Smith.

d. Prejudice

In evaluating the amount of prejudice resulting from the delay, courts should consider the interests the speedy trial right was designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Myers, 930 F.3d at 1120. Of these interests, the last is "the most serious." Barker, 407 U.S. at 532, 92 S.Ct. 2182. "[T]he inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id.

The Court acknowledges that all the speedy trial interests are important ones, however, the last and most weighty interest carries the day. Smith does not argue that his ability to adequately prepare his case is impaired by pretrial delay. Nor can he. Neither side alleges this is a complicated or complex case. Instead, it involves one defendant, a few police officers, and two relatively straight forward criminal charges. Moreover, there will be no erosion of exculpatory evidence and testimony. Each of the police officers involved in Smith's arrest were wearing body cameras. Were memories to fade, the footage from the night in question will undoubtedly assist in refreshing recollections.

e. Conclusion

That Smith's trial will be delayed by more than a year is presumptively prejudicial. However, the delay is justified and imposed in good faith. COVID-19 infections are still on the rise in the district, around the state, and throughout the rest of the country. The Court cannot hold a jury trial at the present time without putting the public, the parties, court staff and the attorneys at substantial risk. Finally, any prejudice caused by the present length of the delay is mitigated by the fact that there is no real risk that the defense will be impaired by it. Accordingly, the Court does not find that the delay until June 7, 2021, constitutes a violation of Smith's Sixth Amendment right to a speedy trial.

C. Fifth Amendment

In addition to arguing that his statutory and Sixth Amendment rights have been violated, Smith argues his pretrial detention violates his Fifth Amendment rights. See Mot. at 6–7. This argument is without merit. Smith cites to United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) in support of this contention. In Salerno, the Supreme Court upheld the validity of the Bail Reform Act, finding that it does not exceed the limitations placed upon the Government by the Due Process Clause of the Fifth Amendment. In doing so, the Supreme Court mentioned that pretrial detention might become excessively prolonged, and therefore punitive. Id. at 747 n.4, 107 S.Ct. 2095. However, it also "intimate[d] no view as to the point at which detention in a particular case might become excessively prolonged." Id.

In conducting its STA and Sixth Amendment analyses, the Court has thoroughly set forth the reasons for which it finds Smith's detention has not been excessively prolonged. The Court has also deemed the determinations made by the magistrate judge at Smith's detention hearing to have been reasonable. Smith has not sought reconsideration of his detention order under the Bail Reform Act and its applicable provisions. If he believes his circumstances have changed such that the analysis and result might be different, he can move for reconsideration of the magistrate's pretrial detention order.

III. ORDER

For the reasons set forth above, the Court DENIES Smith's Motion to Dismiss. The matter having been decided on the papers, the October 27, 2020, hearing is VACATED.

Trial is set for June 7, 2021, and a trial confirmation hearing is set for April 20, 2021.

The time between the date of this Order and June 7, 2021 is excludable under 18 U.S.C. section 3161(h)(7)(A).

IT IS SO ORDERED.