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United States v. Bales

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
Feb 5, 2021
CASE NO. CR20-0090-JCC (W.D. Wash. Feb. 5, 2021)

Opinion

CASE NO. CR20-0090-JCC

02-05-2021

UNITED STATES OF AMERICA, Plaintiff, v. JOSHUA THOMAS BALES, Defendant.


ORDER

This matter comes before the Court on Defendant Joshua Thomas Bales's motion to dismiss (Dkt. No. 73). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES the motion for the reasons explained herein.

I. BACKGROUND

The COVID-19 pandemic has presented the courts with unprecedented challenges—among them, determining how to conduct jury trials without gravely endangering public health and safety and without violating a criminal defendant's right to be tried by a jury drawn from a fair cross section of the community. Beginning on March 6, 2020, Chief Judge Martinez issued a series of General Orders modifying courthouse operations in light of local conditions related to COVID-19 and suspending criminal jury trials in the Western District of Washington. See W.D. Wash. General Order Nos. 01-20, 02-20, 07-20, 08-20, 11-20, 13-20, 15-20, 18-20. Most recently, Chief Judge Martinez issued an order extending the Court's modified operations through March 31, 2021 based on rising infection rates and the fact that most potential jurors will not be fully vaccinated against COVID-19 for months. W.D. Wash. General Order No. 18-20 at 1 (Dec. 30, 2020).

Defendant Joshua Thomas Bales has been charged by indictment with one count of cyberstalking and five counts of making interstate threats. (Dkt. No. 15.) The Government alleges that over the last two years, Mr. Bales sent his ex-girlfriend, X.C., hundreds of harassing and degrading e-mails threatening to "destroy" her, injure her, and harm her reputation. (Id.) Mr. Bales was indicted on July 24, 2020, (id.), and trial was scheduled for September 14, 2020, (Dkt. No. 19).

Ten days before the scheduled trial date, Chief Judge Martinez issued an order extending the Court's modified operations because "[i]n-person trials continue to present an unacceptable public health risk" and

[t]he Court continues to find that, due to the current inability to obtain an adequate spectrum of jurors and the effect of the . . . public health situation on the availability of witnesses, counsel, and Court staff to be present in the courtroom, the time period of the continuances implemented by this General Order will be excluded under the Speedy Trial Act, as the Court finds that the ends of justice served by ordering the continuances outweigh the best interests of the public and any defendant's right to a speedy trial, pursuant to 18 U.S.C. § 3161(h)(7)(A).
Id. at 3. Later that day, the Government moved to continue Mr. Bales's trial until at least December 2020 due to the courthouse closure and the challenges of arranging for X.C. to travel from Australia to testify during the pandemic. (See generally Dkt. No. 22.) The Australian government had prohibited international travel without prior authorization, and even if authorization was obtained, long-distance air travel during the pandemic posed health risks to X.C. and others. (Id. at 3.) Given the logistical challenges and health concerns associated with international travel, the Government argued that it was important to schedule the trial for a date when it would be safe to travel internationally and to impanel a jury. (Id. at 4.)

On September 10, 2020, the Court vacated the September 14, 2020 trial based on General Order 13-20 and did not set a new trial date at that time. (Dkt. No. 23.) In November, the Court directed the parties to appear for a status conference on December 1, 2020 to set a new trial date. (Dkt. No. 40 at 2.) The Court also entered on the record its finding that the period of time from the original trial date to the date of the status conference was excludable under the Speedy Trial Act because the ends of justice served by continuing trial outweighed the best interests of the public and Mr. Bales in a speedy trial. (Id. (citing 18 U.S.C. § 3161(h)(7)(A)).) The Court found the pandemic necessitated a trial continuance because of the difficulty of obtaining an adequate spectrum of jurors to represent a fair cross section of the community as well as the inability of jurors, witnesses, counsel, and Court staff to be present in the courtroom. (Id. at 1-2.) Failing to grant a continuance would make an in-person trial at which Mr. Bales could exercise his right to confrontation impossible and thus would result in a miscarriage of justice. (Id. at 2 (citing 18 U.S.C. § 3161(h)(7)(B)(i)).)

At the December 1 status conference, the Court heard from counsel and set trial for March 1, 2021. (Dkt. Nos. 44, 59.) The Court memorialized its findings in a written order on December 7, 2020, excluding the period from September 10, 2020 through March 1, 2021 under 18 U.S.C. § 3161(h)(7)(A) because the pandemic made it unlikely that a fair or safe trial could proceed any earlier. (Dkt. No. 59 at 2 (citing 18 U.S.C. § 3161(h)(7)(b)(i)).) In so concluding, the Court took into account the increasing COVID-19 infection rate, the imposition of new state and local restrictions on business operations and social gatherings, and the fact that government restrictions on overseas travel could impact the ability of the alleged victim, a Chinese citizen who resides in Australia, to travel to the district to testify. (Id. at 1-2.)

Mr. Bales moves to dismiss, arguing the Speedy Trial Act has been violated because more than 70 days of unexcused time has elapsed since his indictment. (Dkt. No. 73 at 1.)

Mr. Bales also moves to dismiss on the ground that his right to a speedy trial under the Sixth Amendment has been violated. (Dkt. No. 73 at 1, 7.) In determining whether an accused's constitutional right to a speedy trial has been violated, the Court applies a balancing test and considers (1) the length of the delay; (2) the reason for the delay; (3) whether, when, and how a defendant asserted his right to a speedy trial; and (4) whether a defendant was prejudiced by the delay. Doggett v. United States, 505 U.S. 647, 651 (1992) (citing Barker v. Wingo,407 U.S. 514 (1972)). Mr. Bales makes no argument as to why the Court should find a constitutional violation under this standard, and so the Court declines to consider his constitutional challenge.

II. DISCUSSION

1. Motion to Dismiss

The Speedy Trial Act generally requires a criminal defendant to be brought to trial within 70 days of his or her initial appearance or indictment. 18 U.S.C. § 3161(c)(1). Mindful of the need for flexibility, Congress set forth several mechanisms for excluding time from the 70-day period. See 18 U.S.C. § 3161(h); Zedner v. United States, 547 U.S. 489, 497 (2006) ("[T]he Act recognizes that criminal cases vary widely and that there are valid reasons for greater delay in particular cases."). The Act includes a list of automatic exclusions for delays resulting from pretrial proceedings, the absence or unavailability of a defendant or essential witness, interlocutory appeals, and other similar causes. See 18 U.S.C. § 3161(h)(1)-(7). The Act also permits the court to continue a trial and exclude the resulting delay from the speedy trial period when it 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 to grant an ends-of-justice continuance, the Court must consider several factors, including "whether the failure to grant such a continuance would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice." Id. § 3161(h)(7)(B)(i)-(iv). The Court must "set forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice [would be] served" by granting the excludable delay. United States v. Frey, 735 F.2d 350, 352 (9th Cir. 1984). Although the Court must consider the statutory factors at the time it grants the continuance, simultaneous on-the-record findings are "unnecessary so long as the trial court later shows that the delay was motivated by proper considerations." United States v. Bryant, 726 F.2d 510, 511 (9th Cir. 1984).

Mr. Bales argues the 70-day speedy trial period has elapsed because the time from September 10, 2020 to March 1, 2021 is not properly excludable as an ends-of-justice continuance. (See generally Dkt. No. 73.) First, he argues the Court did not contemporaneously consider the statutory factors when it continued the September 14, 2020 trial date. (Id. at 4-5.) Specifically, he likens his case to United States v. Frey, where the Ninth Circuit held that a district court that had miscalculated the speedy trial period could not later justify the unwitting delay by entering a nunc pro tunc order excusing the delay as an ends-of-justice continuance. (Dkt. No. 73 at 5 (citing Frey, 735 F.2d at 353).)

While the better practice would have been for the Court to enter its detailed ends-of-justice findings contemporaneous with the September 10, 2020 continuance, it is evident from the record and the Court's citation to General Order 13-20 that the continuance was based on a consideration of the proper statutory factors. This is not a circumstance like in Frey where the Court's ends-of-justice orders attempted to justify an unwitting delay or a delay motivated by improper considerations. The Court's orders setting forth its findings on the record amply justify excluding the period from September 10, 2020 to March 1, 2021.

Second, Mr. Bales argues the continuance was improper because the Court vacated the September 14, 2020 jury trial without setting a new trial date. (Dkt. No. 73 at 6.) Mr. Bales relies on Furlow v. United States, where the Ninth Circuit upheld an ends-of-justice continuance resulting from the eruption of Mt. St. Helens, in part, because the district court set a specific trial date. 644 F.2d 764, 769 (9th Cir. 1981). While Furlow also involved a continuance necessitated by a public emergency, the nature of the COVID-19 pandemic and its effect on the Court's ability to conduct safe and fair jury trials is unprecedented. Vacating the trial date, and then setting a status conference at which to determine when a jury trial would be possible and whether the ends of justice warranted excluding the additional time until then from the speedy trial clock, was not unreasonable under the circumstances. Accordingly, the Court DENIES Mr. Bales's motion to dismiss.

Because the Court finds the period from September 10, 2020 to March 1, 2021 to be properly excluded from the speedy trial period, the Court need not address the periods that were also excluded under one of the enumerated exceptions. --------

2. Additional Continuance

Trial is presently scheduled for March 1, 2020. (Dkt. No. 59.) At a status conference on February 3, 2021, the Court and the parties addressed the need to further continue the trial date because our state and our district are still significantly impacted by COVID-19. (Dkt. No. 78.) Over the last several months, the daily number of positive cases, hospitalizations, and deaths have significantly increased. See W.D. Wash. General Order 18-20 at 1 (Dec. 30, 2020). A more highly contagious strain of the virus has also started spreading in King County. See https://www.kingcounty.gov/depts/health/covid-19.aspx. While a statewide vaccination effort is underway, it is unlikely that most potential jurors will be fully vaccinated in the immediate future. See W.D. Wash. General Order 18-20 at 2 (Dec. 30, 2020). Public health guidance continues to impact the ability of jurors, witnesses, counsel, and Court staff to be present in the courtroom, and continues to make it difficult, if not impossible, for the Court to obtain an adequate spectrum of jurors to represent a fair cross section of the community. The Court finds that proceeding with trial earlier than June 1, 2021 is likely impossible. See 18 U.S.C. § 3161(h)(7)(B)(i). The Court therefore FINDS the ends of justice served by continuing trial to June 1, 2021 outweigh the public and Mr. Bales's interests in a speedy trial under 18 U.S.C. § 3161(h)(7)(A). // // //

III. CONCLUSION

For the foregoing reasons, the Court DENIES the motion to dismiss (Dkt. No. 73) and further ORDERS:

1. Trial is CONTINUED to June 1, 2021 at 9:30 a.m.

2. The pretrial motions deadline is April 20, 2021.

3. The period of time between the date of this Order and the new trial date is an excludable time period under 18 U.S.C. § 3161(h)(7)(A).

DATED this 5th day of February 2021.

/s/_________

John C. Coughenour

UNITED STATES DISTRICT JUDGE


Summaries of

United States v. Bales

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
Feb 5, 2021
CASE NO. CR20-0090-JCC (W.D. Wash. Feb. 5, 2021)
Case details for

United States v. Bales

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff, v. JOSHUA THOMAS BALES, Defendant.

Court:UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

Date published: Feb 5, 2021

Citations

CASE NO. CR20-0090-JCC (W.D. Wash. Feb. 5, 2021)