USA v. Burk

United States v. Burk 	Case No. 3:19-cr-00117-JMK
Order Denying Motion to Dismiss 	Page 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA
Plaintiff,
vs.
JOHNNYLEE PRESTON BURK,
Defendant.
Case No. 3:19-cr-00117-JMK
ORDER DENYING
MOTION TO DISMISS
Before the Court at Docket 171 is Defendant Johnnylee “Burk’s Motion to
Dismiss Indictment” (the Motion). 	Mr. Burk argues the charges against him must be
dismissed with prejudice due to a violation of his Constitutional Sixth Amendment right to
a speedy trial.1 	The Government responded in opposition at Docket 178. 	No reply was
filed.
“The Sixth Amendment guarantees all criminal defendants ‘the right to a
speedy and public trial[,]’” but “does not prescribe any specified length of time within
which a criminal trial must commence.”2 The Speedy Trial Act was enacted to give effect
to the Sixth Amendment and requires that “a criminal trial begin within seventy days from
1 Docket 171 at 13.
2 United States v. Olsen, 995 F.3d 683, 686 (9th Cir. 2021) (citing U.S. Const. amend. VI).
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United States v. Burk 	Case No. 3:19-cr-00117-JMK
Order Denying Motion to Dismiss 	Page 2
the date on which the indictment was filed, or the date on which the defendant makes an
initial appearance, whichever occurs later.”3 	However, a court may exclude periods of
delay resulting from competency examinations, interlocutory appeals, pretrial motions, the
unavailability of essential witnesses, and delays to which the defendant agrees.4 The “ends
of justice” provision allows for the exclusion of time where a court 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.”5 	“In determining whether the ends of justice outweigh the
best interest of the public and the defendant in a speedy trial, the district court must evaluate
‘among others,’ several enumerated factors.”6 One factor, relevant here, is “[w]hether the
failure to grant such a continuance in the proceeding would be likely to make a continuation
of such proceeding impossible, or result in a miscarriage of justice.”7
Mr. Burk alleges that the Court’s continuance of his trial at Docket 97
violated his Constitutional right to a speedy trial.8 The Court stated, on the record, that:
For reasons stated in Miscellaneous General Order 20-10, the
Court finds that the ends of justice served by ordering a
continuance in this case outweigh the best interests of the
public and Defendant’s right to a speedy trial, pursuant to 18
U.S.C. § 3161(h)(7)(A), (B)(i), and (B)(iv). Accordingly, the
time from the date of this order through May 1, 2020, is
excluded.9
3 Id. (citing to 18 U.S.C. § 3161(c)(1)).
4 See 18 U.S.C. § 3161(h).
5 18 U.S.C. § 3161(h)(7)(A).
6 Olsen, 995 F.3d at 686 (citing to 18 U.S.C. § 3161(h)(7)(B)(i)–(iv)).
7 18 U.S.C. § 3161(h)(7)(B)(i).
8 Docket 171 at 2.
9 Docket 97. Mr. Burk filed a Motion for Reconsideration of this continuance at Docket 98. The Motion
for Reconsideration was denied at Docket 100.
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United States v. Burk 	Case No. 3:19-cr-00117-JMK
Order Denying Motion to Dismiss 	Page 3
Mr. Burk argues that because holding a trial is not physically or logistically impossible, the
COVID-19 pandemic is not an appropriate basis on which to rely in continuing his trial.10
He alleges that potential solutions such as “plexiglas[s] partitions, vigilant testing prior to
any trial, [and] spacing the jurors out amongst the public seating area” are available, and
that because the Court has continued to assemble grand juries, it should be capable of
assembling a trial jury.11 Mr. Burk also argues that the Court did not make specific findings
on the record to support an “ends of justice” delay and cannot rely on General Orders issued
by the Court suspending all jury trials due to the COVID-19 pandemic.12 In support of his
arguments, Mr. Burk cites to United States v. Olsen, 494 F. Supp. 3d 722 (C.D. Cal. 2020),
which held that a defendant’s Sixth Amendment right to a speedy and public trial was
violated where the Court refused to summon jurors due to the COVID-19 pandemic. The
district court found that it was not impossible to conduct a jury trial, because safety
precautions could be put in place and grand juries had been empaneled without issue.13 It
also found that “an ‘ends of justice’ exclusion must be justified with reference to specific
factual circumstances in the particular case as of the time the delay is ordered.”14
However, in April 2021, the Ninth Circuit reversed and remanded the district
court’s decision in Olsen.15 	The Ninth Circuit found that an ends of justice continuance
does not require “literal impossibility,” but is meant to “provide necessary flexibility to
10 Docket 171 at 4–5.
11 Id. at 5–6.
12 Id. at 7–8.
13 United States v. Olsen, 494 F. Supp. 3d 722, 728 (C.D. Cal. 2020).
14 Id. at 730.
15 See generally United States v. Olsen, 995 F.3d 683 (9th Cir. 2021).
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United States v. Burk 	Case No. 3:19-cr-00117-JMK
Order Denying Motion to Dismiss 	Page 4
district courts to manage their criminal cases.”16 	Further, the Ninth Circuit found that
“[n]othing in the Speedy Trial Act limits district courts to granting ends of justice
continuances only when holding jury trials is impossible.”17 Indeed, there are many other
factors the Court considers, including whether the district court’s failure to apply an ends
of justice continuance would result in a miscarriage of justice18 and non-statutory facts
such as whether the parties “actually want and need a continuance,” among others.19
Here, the Court properly made the “required independent findings with
reference to the facts as of the time the delay [was] ordered.”20 On the record, the Court
cited to Miscellaneous General Order 20-10, which found that the COVID-19 pandemic
posed a public health disaster emergency and the ends of justice would be served by
ordering continuances due to the “Court’s reduced ability to obtain an adequate spectrum
of jurors and the effect of the public health recommendations on the availability of counsel
and Court staff to be present in the courtroom[.]”21 	The Ninth Circuit has found that “a
global pandemic that has claimed more than half a million lives in this country[.] . . . falls
within such unique circumstances to permit a court to temporarily suspend jury trials in the
interest of public health.”22 The Court therefore appropriately granted an ends of justice
continuance.
16 Id. at 690–91.
17 Id.
18 Id. at 692.
19 United States v. Loyd, 125 F.3d 1263, 1269 (9th Cir. 1997).
20 Id. at 1269.
21 MGO 20-10.
22 United States v. Olsen, 995 F.3d 683, 693 (9th Cir. 2021).
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United States v. Burk 	Case No. 3:19-cr-00117-JMK
Order Denying Motion to Dismiss 	Page 5
The Court also notes that Mr. Burk himself has consistently, whether
implicitly or explicitly, requested continuances of his trial and has continued to prolifically
file pretrial motions. The Court granted these continuances at Mr. Burk’s request so that
he may continue to prepare materials for trial and pursue a mental health evaluation in
support of a potential insanity defense. Furthermore, since Mr. Burk began acting pro se,
he has filed well over two dozen motions, and there has not been any time since over the
past six months where one or more defense motions were not pending. 	Even absent the
COVID-19 pandemic and Mr. Burk’s desire to prepare for a potential insanity defense, the
entirety of this time would be properly excluded under 18 U.S.C. § 3161(h)(1)(D). 	This
time is all excludable, as noted on the record and in the docket entries of this case. 	The
Court has made the requisite Speedy Trial Act findings and Mr. Burk has suffered no
violation of his constitutional rights.
CONCLUSION
In light of the foregoing, the Motion at Docket 171 is DENIED without
prejudice.
IT IS SO ORDERED this 20th day of September, 2021, at Anchorage,
Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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