USA v. Robert Dunn

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11731
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT DUNN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:20-cr-80085-RKA-1
____________________
Before J ORDAN, ROSENBAUM , and H ULL , Circuit Judges.
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2 Opinion of the Court 22-11731
H ULL , Circuit Judge:
After entering a conditional guilty plea, Defendant Robert
Dunn appeals his convictions on four counts related to child
pornography. At the start of the COVID-19 global pandemic,
Dunn was arrested on a criminal complaint on March 10, 2020.
Thereafter, the district court in the Southern District of Florida
entered a series of pandemic-related administrative orders that,
inter alia, continued grand jury sessions five times in the ends of
justice spanning March 26, 2020, to November 16, 2020. Due to
the pandemic, a grand jury did not formally indict Dunn until
December 1, 2020.
On appeal, Dunn argues that the district court erred in
denying his motion to dismiss his indictment for failure to indict
him within thirty days from his arrest, as required by the Speedy
Trial Act, 18 U.S.C. § 3161(b). Dunn does not challenge the time
between indictment and his guilty plea, but only between his arrest
on March 10 and grand jury indictment on December 1, 2020.
After careful review of the record and briefs, and with the benefit
of oral argument, we conclude that the pandemic-related
continuances in 2020 were not an abuse of discretion and were
within the ends-of-justice exception to the Speedy Trial Act. We
affirm the denial of Dunn’s motion to dismiss his indictment.
I. FACTUAL BACKGROUND
A. Arrest at Start of COVID-19 Pandemic
On March 10, 2020, federal agents arrested Dunn on a
criminal complaint charging he had received and possessed child
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22-11731 Opinion of the Court 3
pornography, in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B), (b)(1),
and (b)(2). The same day, Dunn pled not guilty, and a federal
defender was appointed to represent him. His arraignment was set
for March 24.
The next day, on March 11, the World Health Organization
declared the COVID-19 outbreak a global pandemic. On March
13, the President of the United States declared a national
emergency. See Proclamation No. 9994, 85 Fed. Reg. 15337, 15337
(Mar. 13, 2020).
B. First Pandemic Administrative Order on March 13
On March 13, 2020, then-Chief Judge K. Michael Moore of
the Southern District of Florida entered Administrative Order
2020-18, the first of many responding to the COVID-19 pandemic.
Administrative Order 2020-18 found that “the Centers for
Disease Control and Prevention and other public health authorities
have advised the taking of precautions to reduce the possibility of
exposure to the coronavirus and COVID-19 and slow the spread of
disease.” The order stated it (1) was issued “in order to protect
public health, and in order to reduce the size of public gatherings
and reduce unnecessary travel”; (2) continued jury trials until
March 30, 2020; and (3) continued until further order any trial-
specific deadlines in criminal cases scheduled to begin before
March 30, 2020 (the “pandemic order”).
The March 13 pandemic order also provided that criminal
matters before magistrate judges shall continue and that grand
juries shall continue to meet pending further order of the court.
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4 Opinion of the Court 22-11731
The pandemic order permitted individual judges presiding over
criminal proceedings to “take such actions consistent with this
order as may be lawful and appropriate to ensure the fairness of the
proceedings and preserve the rights of the parties.”
The pandemic order also provided that the time period of
the continuances between March 16 and 30, 2020, were excluded
from the speedy trial clock under the Speedy Trial Act’s ends-of-
justice exception in 18 U.S.C. § 3161(h)(7)(A).
C. First Magistrate Judge Continuance in Dunn’s Case from
March 16 to April 6
After consulting with Dunn’s counsel, the government filed
an unopposed motion to continue Dunn’s arraignment until April
6, 2020. The March 16 motion stated that “[d]ue to the unforeseen
nature of the global coronavirus pandemic, the government and its
agents will not be able to prepare properly for Grand Jury, or
confirm that a quorum for Grand Jury will be available, such that
an Indictment is returned before the arraignment set for March 24,
2020.” Citing 18 U.S.C. § 3161(h)(7)(A), the motion represented
that the parties agreed “that the ends of justice are served by
continuing the arraignment and outweigh the best interests of the
public and the defendant in a speedy trial.”
The same day, a magistrate judge granted the government’s
continuance motion in Dunn’s specific case and set Dunn’s
arraignment to April 6. The magistrate judge’s March 16 pandemic
order stated: (1) “[i]n light of the current public health emergency,
the interests of justice require the Court to take additional steps to
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22-11731 Opinion of the Court 5
protect the health and safety of parties, counsel, and court staff”;
and (2) they also “require that steps be taken to ensure that counsel
and clients (particularly incarcerated clients) have meaningful
consultation.”
The magistrate judge’s order expressly referenced the Chief
Judge’s Administrative Order 2020-18, which also addressed the
COVID-19 pandemic and need to reduce public gatherings and the
spread of the disease. It noted that Administrative Order 2020-18
allowed individual judges presiding over criminal matters to take
such action consistent with that order and “as may be lawful and
appropriate to ensure the fairness of the proceedings and preserve
the rights of the parties.” The magistrate judge’s order excluded
the time from March 16 to April 6 under the Speedy Trial Act,
finding the “ends of justice” were served by the continuance and
outweighed the interests of the parties and the public in a speedy
trial.1
D. Second Criminal Complaint
On March 19, the government filed a second criminal
complaint adding charges of: (1) conspiracy to produce and
production of child pornography, in violation of 18 U.S.C.
§ 2251(a); and (2) a felony involving a minor committed by a sex
offender, in violation of 18 U.S.C. § 2260A. On March 20, Dunn’s
arraignment was set for April 6.
1 The order also reset Dunn’s detention hearing to March 18, 2020. After his
March 18 detention hearing, Dunn was ordered detained.
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6 Opinion of the Court 22-11731
E. Second Pandemic Administrative Order on March 20
On March 20, Chief Judge Moore entered Administrative
Order 2020-21. This second administrative pandemic order was
issued in conjunction with Administrative Order 2020-18, the first
pandemic order, and, among other things, continued jury trials
until April 27, 2020.
Administrative Order 2020-21 again allowed individual
judges to enter continuances in criminal proceedings and excluded
time periods for such continuances under the Speedy Trial Act’s
ends-of-justice exception. It also incorporated by reference its
ends-of-justice determination and the “period of exclusion” in
Administrative Order 2020-18 “as specific finding[s] pursuant to 18
U.S.C. § 3161(h)(7)(A) in the record of each pending case where the
Speedy Trial Act applies.”
F. Grand Jury Sessions Continued From March 26 to April 27
Six days later, on March 26, Chief Judge Moore entered
Administrative Order 2020-22, which expressly stated that it was
issued in conjunction with Administrative Order 2020-18 and
Administrative Order 2020-21, the first and second pandemic
orders. This time, Administrative Order 2020-22 continued all grand
jury sessions until April 27 and excluded the time period from March
16 to April 27 from the speedy trial clock under the ends-of-justice
exception “pursuant to 18 U.S.C. § 3161(h)(7)(A) and (B)(iii).”
Among other things, the March 26 pandemic order:
(1) found that “the ends of justice served by taking this action
outweigh the interests of the parties and the public in a speedy trial
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22-11731 Opinion of the Court 7
because the continuance of grand jury sessions in this district renders it
unreasonable to expect the return and filing of an indictment within the
period set forth in 18 U.S.C. § 3161(b)”; and (2) incorporated by
reference the order and the period of exclusion “as a specific finding
pursuant to 18 U.S.C. § 3161(h)(7)(A) in the record of each pending
case where the Speedy Trial Act applies,” citing Zedner v. United
States, 547 U.S. 489, 506-07 (2006). (Emphasis added.)
G. Four Subsequent Administrative Orders Collectively
Continued Grand Jury Sessions Through November 16
Subsequent Administrative Orders, entered in April, May,
June and August 2020 contained substantially the same language as
Administrative Order 2020-22. These Administrative Orders
extended the continuance of grand jury sessions and excluded the
continuance period from the speedy trial clock based on an ends-
of-justice finding.
Each Administrative Order included express references to
the first pandemic order in Administrative Order 2020-18 and each
successive Administrative Order related to the pandemic. Each
Administrative Order also stated that it was acting “pursuant to 18
U.S.C. § 3161(h)(7)(A) and (B)(iii)” and found that the ends of
justice outweighed the parties’ and the public’s interest in a speedy
trial “because the continuance of grand jury sessions in this district
render[ed] it unreasonable to expect the return and filing of an
indictment within the period set forth in 18 U.S.C. § 3161(b).” Each
Administrative Order also incorporated by reference the periods of
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8 Opinion of the Court 22-11731
exclusion in the prior Administrative Orders as a specific finding in
each pending case where the Speedy Trial Act applied.
As a result of these pandemic-related Administrative Orders,
no grand jury sessions occurred in the Southern District of Florida
between March 26, 2020, and November 16, 2020.
H. Magistrate Judges Periodically Continue Dunn’s
Arraignment
Meanwhile, after Chief Judge Moore continued all grand
jury sessions, individual magistrate judges presiding over Dunn’s
criminal proceedings continued his arraignment several times.
The first, 45-day continuance—from April 6 to April 27—
was based on the government’s unopposed motion filed on March
30, 2020. The government’s motion cited Administrative Order
2020-22 “formally cancelling” grand jury sessions until April 27 and
stated that “the Government is unable to Indict the above-entitled
case prior to the currently scheduled arraignment date of April 6,
2020, nor at least until April 27, 2020.” The government
represented that the parties agreed that: (1) the ends of justice were
served by continuing arraignment and outweighed the interest of
the public and the defendant in a speedy trial; (2) Dunn’s
arraignment and preliminary hearing should be reset for May 21;
and (3) the “time should be excluded from the speedy trial period
in this case.”
On March 31, 2020, a magistrate judge granted the
government’s motion and reset Dunn’s arraignment and
preliminary hearing for May 21 as requested. The magistrate judge
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22-11731 Opinion of the Court 9
found that the continuance period of April 6 to May 21 was “speedy
trial excludable in that the ends of justice are served by continuing
the preliminary hearing/arraignment and outweigh the best
interests of the public and the defendant in a speedy trial.”
Dunn’s preliminary hearing was held by videoconference on
May 20.2 The magistrate judge concluded the government
established probable cause as to the offenses set forth in the two
complaints. However, because there still was no grand jury in
session and thus no indictment, Dunn was not arraigned at that
time. During the hearing, the prosecutor advised that: (1) he was
“waiting for the grand jury to reopen” to seek an indictment; and
(2) he discussed with Dunn’s defense counsel about “possibly
proceeding on an information pending a grand jury” but remained
“in a holding pattern.”
The magistrate judge responded that Dunn had a right to
wait and have the case presented to a grand jury when it
reconvened. The magistrate judge entered an order excluding the
time from May 20 to July 6 under the Speedy Trial Act “[p]ursuant
to Administrative Order 2020-24,” which was the most recent
Administrative Order continuing grand jury sessions to July 6, 2020
due to the pandemic.
On July 6, a magistrate judge held a status conference via
videoconference regarding Dunn’s arraignment. The magistrate
2 The preliminary hearing was moved from May 21 to May 20 due to “the
current schedule of availability to see defendants by videoconference.”
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10 Opinion of the Court 22-11731
judge noted that “we still have the COVID-19 pandemic increasing
situation,” and asked, “where are we on this?” The prosecutor
agreed to provide Dunn discovery, advised he planned to seek an
indictment as soon as grand jury sessions resumed, and
recommended resetting arraignment for one week “after the
current October resetting.”
The magistrate judge acknowledged the most recent,
pandemic-related Administrative Order 2020-41 that continued
grand jury sessions until October 13, 2020, and excluded that time
from the speedy trial clock. With the parties’ agreement, the
magistrate judge concluded he would reset Dunn’s arraignment for
October 21, 2020, “pursuant to the CARES ACT and the
administrative orders that have been entered, including 2020-41.”
The magistrate judge found that it was “necessary in the
interests of justice” to toll the speedy trial period due to the
coronavirus pandemic and that the interests of justice “outweigh[]
any interest of the Defendant or the public in a speedy trial.” The
magistrate judge also confirmed that Dunn understood “grand
juries are currently suspended” and were not expected to resume
until “around October 13, 2020, if all goes well,” at which time the
government would be able to obtain an indictment. Afterward, the
magistrate judge reset Dunn’s arraignment for October 21, 2020,
and reiterated his ends-of-justice findings “as stated on the record.”
On October 20, 2020, Dunn filed an unopposed motion to
continue his arraignment for 90 days and to exclude that time from
the speedy trial calculations. Dunn’s motion explained that his
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22-11731 Opinion of the Court 11
arraignment was “periodically continued, because the coronavirus
pandemic has prevented grand juries from convening in this
district” and that “grand jury sessions have still not reconvened,
and no indictment has been returned.”
The next day, a magistrate judge granted Dunn’s motion,
reset his arraignment for January 20, 2021, as Dunn requested, and
excluded the time period from October 20, 2020, to January 20,
2021, from the speedy trial calculations “because the ends of justice
served by this delay outweigh the interests of the defendant and of
the public in a speedy trial.”
I. Dunn’s December 1 Indictment
On October 20, 2020, Chief Judge Moore issued
Administrative Order 2020-76, which permitted limited grand jury
sessions to resume on November 16, 2020. That Administrative
Order stated that “[t]he U.S. Attorney’s Office and Clerk of Court
have advised that they can safely convene no more than two grand
jury sessions per week starting that date.”
On December 1, 2020, a grand jury indicted Dunn on five
offenses: (1) conspiracy to produce child pornography, in violation
of 18 U.S.C. § 2251 (a) and (e) (Count 1); (2) production of child
pornography, in violation of 18 U.S.C. § 2251(a) and (e) (Count 2);
(3) offense by a registered sex offender, in violation of 18 U.S.C.
§ 2260A (Count 3); (4) receipt of child pornography, in violation of
18 U.S.C. § 2252(a)(2) and (b)(1) (Count 4); and (5) possession of
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12 Opinion of the Court 22-11731
child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and
(b)(2) (Count 5).3
In a thorough December 29, 2020 order, the district court set
a trial date of April 12, 2021, and found the COVID-19 pandemic
had made “jury trials unfeasible for the foreseeable future”
because: (1) local jails were in “lock down”; (2) defense lawyers
were unable “to meet with their clients, confer with the
Government, or prepare their cases for trial”; and (3) “millions of
Americans [had] to quarantine themselves in their homes” or
“remove themselves only sparingly.”
Given the COVID-19 pandemic, the district court found
that: (1) under 18 U.S.C. § 3161(h)(7), “the ends of justice served by
setting the trial date beyond the 70 days contemplated in the
Speedy Trial Act outweigh the best interests of the public and the
Defendant in a speedy trial”; (2) “under Section 3161(h)(7)(B)(i),
failure to extend the trial period would result in a miscarriage of
justice because a jury trial is unfeasible during this pandemic”; and
(3) under § 3161(h)(7)(B)(v), “failure to extend the trial period
would ‘deny counsel for the defendant or the attorney for the
Government the reasonable time necessary for effective
preparation, taking into account the exercise of due diligence.’”4
3 Dunn’s indictment was obtained from the first available convened grand jury
for the West Palm Beach division of the Southern District of Florida, where
Dunn’s case was lodged. Dunn was later arraigned.
4 Before Dunn pled guilty, the district court entered two more trial orders that
pushed back Dunn’s trial date due to the pandemic and, after making similar
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22-11731 Opinion of the Court 13
J. Motion to Dismiss the Indictment
On January 21, 2021, Dunn filed a motion to dismiss his
indictment with prejudice based on the eight-month delay between
his arrest on March 10 and his indictment on December 1, 2020.
Dunn argued the delay violated the Speedy Trial Act’s thirty-day
time limit. Dunn challenged various aspects of Chief Judge
Moore’s pandemic Administrative Orders and the magistrate
judges’ pandemic continuance orders.5 The government opposed
Dunn’s motion.
K. Denial of Dunn’s Motion to Dismiss the Indictment
In a comprehensive October 1, 2020 order, the district court
denied Dunn’s motion to dismiss his indictment. The district court
found that the COVID-19 pandemic had killed hundreds of
thousands of Americans, forced millions of others to quarantine in
their homes, and disrupted grand jury operations. The district
court explained that grand jury proceedings had been “unfeasible”
findings, excluded that time under the Speedy Trial Act. Dunn did not raise
any speedy trial issue as to these three post-indictment continuances or
preserve such an issue for appellate review as part of his conditional guilty
plea.
5 Dunn’s motion also argued that the pre-indictment delay violated his Fifth
and Sixth Amendment rights and that dismissal of his indictment was required
by Federal Rule of Criminal Procedure 48. However, Dunn did not preserve
these issues for appeal as part of his conditional plea, and we do not address
them.
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14 Opinion of the Court 22-11731
under the circumstances and that the delay in indictment was
necessary “to protect the public from a deadly disease.”
The district court reviewed in detail the history of the above
pandemic-related Administrative Orders and the magistrate
judges’ continuance orders in Dunn’s specific case.
The district court pointed to its three trial orders extending
Dunn’s trial date and excluding that time from the speedy trial
clock. The district court explained its view “that, as a practical
matter, the Covid-19 pandemic made the process of empaneling
juries (whether grand or petit) unfeasible and dangerous” and that
its earlier findings guide its inquiry in ruling on Dunn’s motion.
The district court concluded that its findings, although made post-
indictment, were “relevant to [its] analysis” because “they put [the
court’s] specific ‘findings’ about the feasibility of calling jurors” on
the record by the time it ruled on Dunn’s motion to dismiss, as
required by the Supreme Court’s decision in Zedner v. United States,
547 U.S. 489 (2006).
The district court concluded that “the district-wide orders in
this case did include specific ‘on-the-record findings’ that, because
of the raging pandemic, ‘the ends of justice served by [the
continuance] outweigh the interests of the parties and the public in
a speedy trial’” that were “expressly applied . . . to every criminal
case then pending in our District.” And in any event, the
magistrate judges who granted the various agreed-upon motions
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22-11731 Opinion of the Court 15
to continue Dunn’s arraignment also “made specific ends-of-justice
findings on the record.” (Footnote omitted.)6
The district court stated that a “review of those
proceedings” left “no doubt about the magistrate judges’ reasons
for granting these continuances,” noting they had cited the
ongoing pandemic as the justification. Agreeing with the
magistrate judges’ assessments, the district court stated “the
continuances were necessary to protect the health and safety of
lawyers, jurors, and court staff. They were also an important way
of protecting the rights of the accused—who, given the shutdowns
at local jails, had no way of meeting (or adequately consulting) with
their lawyers.”
The district court observed that “21 separate ends-of-justice
findings” had been made on the record in Dunn’s case by different
judges. The district court concluded these “ends of justice”
findings were “plainly sufficient to satisfy the Speedy Trial Act” and
to exclude from the speedy trial clock all the time between Dunn’s
6 While stating that Dunn could not prospectively waive application of the
Speedy Trial Act, see Zedner v. United States, 547 U.S. 489 (2006), the district
court noted that Dunn never objected to any of the magistrate judges’
continuances or “suggested that [his defense counsel] acted improperly in
seeking or consenting to the various continuances.” Because the various
Administrative Orders and magistrate judges’ orders properly tolled the
speedy trial clock during the COVID-19 pandemic, we need not discuss or
evaluate Dunn’s consent to any of them.
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16 Opinion of the Court 22-11731
arrest and his indictment, except for the first six days, which no
order had excluded.7
J. Conditional Guilty Plea
In December 2021, Dunn pled guilty to Counts 1, 2, 4, and
5, in exchange for dismissal of Count 3, pursuant to a plea
agreement. Dunn’s plea was conditioned on his right to seek
appellate review of only “the denial of his pro se motion to dismiss
the indictment . . . as to his statutory speedy trial rights only and to
no other issue in the order.”
As part of the plea, Dunn signed a proffer of facts, which he
stipulated the government could prove beyond a reasonable doubt.
The factual proffer recounted that in September 2019, the Federal
Bureau of Investigation (“FBI”) began investigating Dunn after
Google reported that accounts linked to Dunn were being used to
store child pornography. Dunn, a registered sex offender, was
convicted in 2014 of traveling to meet a parent to solicit/entice a
child to commit a sex act and of attempted lewd or lascivious
battery of a child. Search warrants returned from Google
confirmed Google’s cyber tips. The FBI then executed a search
warrant at Dunn’s Florida residence. Dunn’s laptop contained
dozens of images and at least eight videos of child sexual abuse.
7 The district court ran the speedy trial clock from Dunn’s March 10 arrest on
the first criminal complaint containing only two of the four charges to which
Dunn pled guilty. Because the parties do not contend the second criminal
complaint containing the other two charges affected the speedy trial clock
analysis, we do not address that issue.
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22-11731 Opinion of the Court 17
Dunn admitted downloading and distributing child pornography
over the internet. He also admitted to communicating with a
woman named Tonya in Colorado and convincing her to take
pictures of her performing oral sex on her six-year-old son and to
send them to him.
The factual proffer further stated that after Dunn’s arrest,
the FBI arrested Tonya Bagley in Colorado. Through search
warrants, the FBI found evidence that in November 2019 Dunn and
Bagley entered into a “master-slave” relationship, and Dunn
directed Bagley to take and send photographs of her performing
oral sex on her six-year-old son via Facebook Messenger, which she
did.
At the plea hearing, the district court accepted Dunn’s
conditional guilty plea. At sentencing, 93 victims were identified
from 163 images of child pornography found on Dunn’s laptop and
cellphone. The district court imposed a total sentence of 600
months’ imprisonment, followed by a lifetime of supervised
release. Dunn was ordered to pay restitution to Bagley’s six-year-
old son and to five of the victims identified in the child
pornography images.
II. GENERAL PRINCIPLES
A. Standard of Review
We review de novo the district court’s denial of a motion to
dismiss based on a violation of the Speedy Trial Act, and for clear
error its factual determinations as to excludable time. United States
v. Ammar, 842 F.3d 1203, 1208 (11th Cir. 2016). A district court’s
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decision to grant or deny an ends-of-justice continuance under the
Speedy Trial Act is reviewed for an abuse of discretion. United
States v. Mathis, 96 F.3d 1577, 1579 (11th Cir. 1996).
B. “Ends-of-Justice” Continuances Under the Speedy Trial Act
The Speedy Trial Act requires the government to file an
indictment or information against a defendant within thirty days
from the date on which the defendant was arrested or served with
a summons in connection with the charges. 18 U.S.C. § 3161(b).
“If the thirty-day time limit is not met, the Act entitles the
defendant to the dismissal of the charges contained in the initial
complaint.” United States v. Mathurin, 690 F.3d 1236, 1239 (11th Cir.
2012); 18 U.S.C. § 3162(a)(1).
The Act, however, excludes certain “periods of delay” when
computing the thirty-day time limit. 18 U.S.C. § 3161(h); Zedner,
547 U.S. at 497. One excluded period of delay is an “ends-of-justice
continuance,” which is governed by § 3161(h)(7). Zedner, 547 U.S.
at 498.8
Specifically, § 3161(h)(7)(A) “permits a district court to grant
a continuance and to exclude the resulting delay if the court, after
considering certain factors, makes on-the-record findings that the
ends of justice served by granting the continuance outweigh the
8 When Zedner was decided in 2006, the Speedy Trial Act’s provision excluding
ends-of-justice continuances was found at § 3161(h)(8). Zedner, 547 U.S. at 498.
In 2008, the Act was amended, and the provision was moved to § 3161(h)(7)
but was otherwise unchanged. Ammar, 842 F.3d at 1206 n.2.
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public’s and defendant’s interests in a speedy trial.” Id. at 498-99;
18 U.S.C. § 3161(h)(7)(A). And § 3161(h)(7)(A) states that no such
period of delay is excludable “unless the court sets forth, in the
record of the case, either orally or in writing, its reasons for finding
that the ends of justice served by the granting of such continuance
outweigh the best interests of the public and the defendant in a
speedy trial.” 18 U.S.C. § 3161(h)(7)(A).
In turn, § 3161(h)(7)(B) contains a non-exhaustive list of
factors a court considers in granting the continuance. 18 U.S.C.
§ 3161(h)(7)(B)(i)-(iv). These factors include whether: (1) the
failure to grant the continuance “would be likely to make a
continuation of such proceeding impossible, or result in a
miscarriage of justice”; (2) the case is so unusual or complex that it
is unreasonable to expect adequate preparation within the Speedy
Trial Act’s time limits; (3) “in a case in which arrest precedes
indictment, delay in the filing of the indictment is caused because
the arrest occurs at a time such that it is unreasonable to expect
return and filing of the indictment” within the Speedy Trial Act’s
30-day time limit; and (4) the failure to grant a continuance would
deny the defendant “reasonable time to obtain counsel,” would
unreasonably deny either party “continuity of counsel,” or would
deny counsel for either party reasonable time “for effective
preparation, taking into account the exercise of due diligence.” Id.
Courts have broad discretion in weighing these factors.
United States v. Henry, 698 F.2d 1172, 1174 (11th Cir. 1983).
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20 Opinion of the Court 22-11731
III. DUNN’S CLAIMS
After Dunn’s arrest on March 10, the speedy trial clock
started running on March 11, 2020. See United States v. Skanes, 17
F.3d 1352, 1353 (11th Cir. 1994) (holding the day the defendant is
arrested is not counted for purposes of the Speedy Trial Act’s thirty-
day time limit). If proper, the above ends-of-justice continuances
tolled the speedy trial clock from March 16 up to Dunn’s
indictment on December 1, 2020, without interruption. That
results in no Speedy Trial Act violation.
On appeal, Dunn challenges these orders in several ways,
which we address in turn.
A. Magistrate Judge’s March 16, 2020, Continuance
Dunn argues that in his March 16, 2020, order, the
magistrate judge abused his discretion in granting the
government’s very first motion to continue Dunn’s arraignment
until April 6, 2020. Dunn contends the magistrate judge
improperly accepted without further inquiry the government’s
representations that due to the pandemic it was unable (1) to
prepare properly for the grand jury or (2) to ensure that a quorum
of the grand jury would be present. Dunn argues this “directly
contradict[ed]” Administrative Order 2020-18, which directed
grand jury sessions and arraignments to continue.
Contrary to Dunn’s argument, nothing in Administrative
Order 2020-18 precluded an individual magistrate judge from
granting a short ends-of-justice continuance due to difficulties
presented by the pandemic. Instead, Administrative Order 2020-18
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gave individual judges presiding over criminal proceedings the
discretion to take “appropriate” additional actions “to ensure the
fairness of the proceedings and preserve the rights of the parties.”
Furthermore, the magistrate judge’s continuance order
cited Administrative Order 2020-18, noted that it gave him this
discretion, and explained that the “public health emergency”
required him to take “additional steps to protect the health and
safety of the parties, counsel, and court staff” and to ensure that
incarcerated defendants like Dunn were able to have meaningful
consultation with their counsel.
And the unopposed motion was providently granted, given
that within ten days, on March 26, Chief Judge Moore entered
Administrative Order 2020-22, continuing all grand jury sessions in
the Southern District until April 27, 2020, due to the pandemic.
Under the circumstances, Dunn has not shown an abuse of
discretion.
B. Dunn’s Speedy Trial Act Claim
Next, Dunn argues that neither Chief Judge Moore’s
pandemic-related Administrative Orders nor the magistrate judges’
pandemic-related continuance orders made sufficient findings
required by § 3161(h)(7) to exclude the time between March 16 and
December 1, 2020, from the speedy trial clock in his case.
As already mentioned, the Speedy Trial Act “requires that
when a district court grants an ends-of-justice continuance, it must
set forth, in the record of the case, either orally or in writing, its
reasons for finding that the ends of justice are served and they
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22 Opinion of the Court 22-11731
outweigh other interests.” Zedner, 547 U.S. at 506 (alteration
adopted) (quotation marks omitted). If a district court does not
make the required “on-the-record findings,” then the period of the
continuance cannot be excluded from the speedy trial clock. Id. at
507; Ammar, 842 F.3d at 1210.
As to Chief Judge Moore’s Administrative Orders, Dunn
argues that even in a pandemic, “all-inclusive blanket
continuances” applied to every pending case in the district are not
“case-specific” and therefore cannot satisfy § 3161(h)(7)’s
requirements for purposes of the five continuances in his case. See
Zedner, 547 U.S. at 499 (stating that the Speedy Trial Act’s ends-of-
justice provision “gives the district court discretion—within limits
and subject to specific procedures—to accommodate limited delays
for case-specific needs”).
The government points out that our sister circuits have held
that the national public health emergency caused by the global
COVID-19 pandemic provided sufficient justification for a district
court’s district-wide blanket order temporarily continuing jury
trials during this pandemic and excluding that time under the
Speedy Trial Act’s ends-of-justice exception. See United States v.
Keith, 61 F.4th 839, 844, 851 (10th Cir. 2023) (jury trials); United
States v. Leveke, 38 F.4th 662, 670 (8th Cir. 2022) (same), cert. denied,
143 S. Ct. 386 (2022); United States v. Olsen, 21 F.4th 1036, 1049 (9th
Cir. 2022) (same), cert. denied, 142 S. Ct. 2716 (2022); United States v.
Roush, No. 21-3820, 2021 WL 6689969, *2 (6th Cir. Dec. 7, 2021)
(same), cert. denied, 142 S. Ct. 1187 (2022).
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In this regard, the Ninth Circuit has observed that the
pandemic had the “same widespread effects on courts and parties
alike,” and “[i]n such unusual cases, a district court’s specific
findings may properly concern generally applicable
circumstances.” See United States v. Orozco-Barron, 72 F.4th 945,
956, 958 (9th Cir. 2023) (“In such instances, the reasons for granting
the ends of justice continuance must still be based upon specific
factual circumstances justified in the record, but need not be
particularized to an individual defendant.” (quotation marks
omitted)). The government argues that under the unique situation
of the deadly 2020 COVID-19 pandemic, there was no need for
additional orders by the magistrate judges in specific cases because
the widespread pandemic applied to courts and parties alike.
In Dunn’s case, however, we need not reach or decide the
question of whether the district-wide Administrative Orders here
were sufficient for ends-of-justice purposes under the Speedy Trial
Act. This is because the magistrate judges’ continuances entered
in Dunn’s specific case were sufficient.
Here, the record establishes that all five magistrate judge
continuances were granted due to health and safety concerns and
restrictions arising from the COVID-19 pandemic. The first, the
March 16 order continuing Dunn’s arraignment from March 24 to
April 6, was entered just days after the global pandemic was
declared a national emergency. The order explained that because
of “the current public health emergency” the continuance was
required “to protect the health and safety of parties, counsel, and
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24 Opinion of the Court 22-11731
court staff” and “to ensure that . . . clients (particularly incarcerated
clients),” like Dunn, “have meaningful consultation.” The order
cited Chief Judge Moore’s first pandemic Administrative Order
2020-18 and also made its own explicit ends-of-justice finding.
Moreover, the record is clear that in Dunn’s case the parties
sought, and the magistrate judges granted, periodic continuances
of his specific arraignment because Chief Judge Moore had
continued grand jury sessions to protect public health and reduce
the exposure to, and spread of, COVID-19 through large public
gatherings. Indeed, three of the four magistrate judge orders
continuing Dunn’s arraignment due to the unavailability of a grand
jury (March 31, 2020, July 6, 2020, and October 20, 2020) also
included an explicit finding that the ends of justice served by the
continuance outweighed the interests of Dunn and the public in a
speedy trial. One order (May 20, 2020) did expressly refer to Chief
Judge Moore’s then-latest Administrative Order 2020-24
continuing grand jury sessions due to the pandemic, which had
made an express ends-of-justice finding, and that May 20, 2020,
order in effect incorporated that ends-of-justice finding into Dunn’s
specific case.
The fact that all grand jury sessions in the Southern District
were temporarily continued due to the COVID-19 pandemic
provided sufficient justification to continue temporarily Dunn’s
arraignment. And, under the COVID-19 pandemic circumstances,
the magistrate judges were not required to make more case-
specific, ends-of-justice findings, beyond the COVID-19 pandemic-
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related one, in order to comply with § 3161(h)(7)(A) and exclude
the time from Dunn’s speedy trial clock. That is especially so here,
where the administrative orders stated that grand juries were not
able to meet because of health and safety concerns stemming from
the pandemic, and that was the reason why Dunn was not indicted.
Dunn also contends the magistrate judge’s orders did not
provide indicia that the § 3161(h)(7)(B)’s factors were considered.
But the Speedy Trial Act requires the court to put on the record
only “its reasons for finding that the ends of justice served by the
granting of such continuance outweigh the best interests of the
public and the defendant in a speedy trial.” 18 U.S.C.
§ 3161(h)(7)(A) While the Speedy Trial Act also requires a court to
“consider” § 3161(h)(7)(B)’s factors before granting an ends-of-
justice continuance, it does not require the district court to do so
on the record. See 18 U.S.C. § 3161(h)(7)(B). It is not necessary for
the court to incant specific phrases from the Speedy Trial Act or to
consider each of the statutory factors on the record so long as the
court provides sufficient justification for granting the ends-of-
justice continuance. See Orozco-Barron, 72 F.4th at 956-57.
Moreover, the district court is not limited to considering the
statutory factors. See id. § 3161(h)(7)(B) (providing that a judge
shall consider the statutory factors “among others”). In a public
health emergency affecting court operations such as the COVID-
19 pandemic, a court properly considers the health and safety of
the public, court personnel, the parties, and counsel.
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Here, as to the magistrate judge’s first March 16 pandemic
continuance, the government’s motion stated that due to the
unforeseen nature of the pandemic, prosecutors could not prepare
properly for the grand jury or even guarantee a quorum to convene
a grand jury by Dunn’s March 24 arraignment. The magistrate
judge’s order further stated that the continuance was necessary to
ensure that Dunn, who was incarcerated, could meaningfully
consult with his counsel given the pandemic. These on-the-record
reasons for the ends-of-justice continuance implicate two statutory
factors—whether the failure to grant the continuance (1) would
likely “result in a miscarriage of justice” or (2) “would deny counsel
for the defendant or the attorney for the Government the
reasonable time necessary for effective preparation, taking into
account the exercise of due diligence.” See id. § 3161(h)(7)(B)(i),
(iv). And, as we already explained, the magistrate judge was not
required to expressly consider each statutory factor in its order or
recite specific language from the statute. After all, not every
statutory factor will be relevant to the circumstances warranting
the continuance. Instead, it is sufficient if the record shows, as it
does here, that the magistrate judge considered the pertinent
factors.
As to the remaining continuances in Dunn’s case, each was
sought and granted because Chief Judge Moore’s pandemic-related
Administrative Orders temporarily continued grand jury sessions.
Those Administrative Orders, in turn, explicitly cited 18 U.S.C.
§ 3161(h)(7)(B)(iii), the most salient statutory factor under the
circumstances—whether “in a case in which arrest precedes
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indictment,” such as in Dunn’s case, the “delay in the filing of the
indictment is caused because the arrest occurs at a time such that it
is unreasonable to expect return and filing of the indictment within
the period specified in section 3161(b).” See id. § 3161(h)(7)(B)(iii).
Reading the five magistrate judges’ orders in Dunn’s specific case
in the context of the record and the Administrative Orders, we
conclude § 3161(h)(7)’s requirements to consider the statutory
factors and make an ends-of-justice finding on the record were
satisfied with respect to the continuances in Dunn’s case.
C. District Court’s Order
As an alternative and independent ground, we also take time
to point out that the district court’s comprehensive order—
denying Dunn’s motion to dismiss his indictment—was alone
sufficient to toll the speedy trial clock. See Zedner, 547 U.S. at 506-
07 (providing that, while the best practice is to make
contemporaneous ends-of-justice findings, a district court may put
its ends-of-justice findings on the record at the latest when it “rules
on a defendant’s motion to dismiss under § 3162(a)(2)”); Ammar,
842 F.3d at 1207 (“[W]e look to see whether the district court
considered the relevant factors and placed its ends-of-justice
findings on the record . . . at the latest, by the time it ruled on [the
defendant’s] motion to dismiss for a speedy trial violation.”).
The district court’s excellent order explained in detail why
public health concerns due to the COVID-19 pandemic made it
necessary for Chief Judge Moore to continue grand jury sessions in
the Southern District and therefore for the magistrate judges to
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continue Dunn’s arraignment. The district court found that “the
Covid-19 pandemic made the process of empaneling juries
(whether grand or petit)” not just unfeasible but also “dangerous,”
and made it difficult for defense counsel to meet with clients held
in jails that were locked down. The district court expressly agreed
with the magistrate judges’ contemporaneous findings that the
ends of justice served by the continuances during the deadly
pandemic outweighed the best interests of the public and Dunn in
a speedy trial. We readily conclude that the district court’s order
denying Dunn’s motion to dismiss the indictment more than
satisfied § 3161(h)(7)’s requirements to consider the statutory
factors and to make an ends-of-justice finding on the record.
IV. CONCLUSION
Because the government filed Dunn’s indictment within the
Speedy Trial Act’s thirty-day time limit in 18 U.S.C. § 3161(b), the
district court properly denied Dunn’s motion to dismiss the
indictment. Accordingly, we affirm Dunn’s convictions.
AFFIRMED.
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