In re: REGINALD SMITH, REGINALD SMITH v. United States District Court for the Eastern District of California, Sacramento

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: REGINALD SMITH,
______________________________
REGINALD SMITH,
Petitioner,
v.
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
CALIFORNIA, SACRAMENTO,
Respondent,
UNITED STATES OF AMERICA,
Real Party in Interest.
No. 20-73723
D.C. No.
2:19-cr-00213-JAM-1
MEMORANDUM*
Petition for Writ of Mandamus
Submitted March 18, 2021 **
San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and LYNN, *** District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Barbara M. G. Lynn, Chief United States District Judge
FILED
APR 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 6 --

2
Defendant Reginald Smith was arrested on August 7, 2019, and on December
5, 2019, was indicted by a federal grand jury for possession with intent to distribute
methamphetamine, 21 U.S.C. § 841(a)(1), (b)(1)(B), and possession of a firearm in
furtherance of a drug trafficking crime, 18 U.S.C. § 924(c). A magistrate judge
ordered Smith detained pending trial due to Smith’s history of substance abuse and
violent crime. During the period Smith has been in custody, on numerous occasions
time has been excluded for the purpose of calculating the period by which Smith
must be brought to trial under the Speedy Trial Act.
On August 25, 2020 Smith filed a motion to dismiss the charges against him
alleging a violation of his speedy trial rights. The district court denied Smith’s
motion and excluded time from the speedy trial clock pursuant to 18 U.S.C. §
3161(h)(7)(A)—the Speedy Trial Act’s ends of justice provision—from October 14,
2020, the date of the order denying Smith’s motion, until June 7, 2021, the date of
Smith’s trial, because the district court could not safely conduct a jury trial until
then.1 Smith petitions this Court for mandamus relief and requests that we direct the
United States District Court for the Eastern District of California to dismiss Smith’s
for the Northern District of Texas, sitting by designation.
1 In response to the COVID-19 pandemic, the Eastern District of California
suspended all jury trials on March 17, 2020. See E.D. Cal. General Order 611 (Mar.
17, 2020). Jury trials remain suspended “until further notice.” See E.D. Cal. General
Order 618 (May 13, 2020).

-- 2 of 6 --

3
case with prejudice because he is purportedly being held after his speedy trial clock
has expired. We have jurisdiction under 28 U.S.C. § 1651, and we deny Smith’s
petition.
“The remedy of mandamus is a drastic one.” Bauman v. U.S. Dist. Court, 557
F.2d 650, 654 (9th Cir. 1977). A petitioner must demonstrate “exceptional
circumstances amounting to a judicial usurpation of power” to obtain this remedy.
Id. (internal quotation marks and citation omitted). To determine whether a writ of
mandamus is warranted, we look to the following factors: (1) whether the petitioner
has “no other adequate means, such as a direct appeal, to attain the relief he or she
desires”; (2) whether the petitioner “will be damaged or prejudiced in a way not
correctable on appeal”; (3) whether “[t]he district court’s order is clearly erroneous
as a matter of law”; (4) whether the district court’s order makes an “oft-repeated
error, or manifests a persistent disregard of the federal rules”; and (5) whether “[t]he
district court’s order raises new and important problems,” or legal issues of first
impression. Id. at 654–55. While “[n]ot every factor need be present at once . . . the
absence of the third factor, clear error, is dispositive.” Burlington N. & Santa Fe Ry.
Co. v. U.S. Dist. Court, 408 F.3d 1142, 1146 (9th Cir. 2005). A finding of clear
error requires a “firm conviction” that the district court misinterpreted the law, In re
Cement Antitrust Litig., 688 F.2d 1297, 1306–07 (9th Cir. 1982), or committed a

-- 3 of 6 --

4
“clear abuse of discretion,” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004)
(internal quotation marks and citation omitted).
The district court did not clearly err in continuing Smith’s trial and excluding
time under the Speedy Trial Act on its own. The Speedy Trial Act directs district
courts to consider the factors listed in § 3161(h)(7)(B), “among others,” in
determining whether “the ends of justice served by [granting a continuance]
outweigh the best interests of the public and the defendant in the speedy trial.” 18
U.S.C. § 3161(h)(7)(A). These factors include:
(i) Whether 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.
(ii) Whether the case is so unusual or so complex, due to the number of
defendants, the nature of the prosecution, or the existence of novel
questions of fact or law, that it is unreasonable to expect adequate
preparation for pretrial proceedings or for the trial itself within the time
limits established by this section.
(iii) Whether, 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 period specified in section 3161(b), or because the facts upon
which the grand jury must base its determination are unusual or
complex.
(iv) Whether the failure to grant such a continuance in a case which,
taken as a whole, is not so unusual or so complex as to fall within clause
(ii), would deny the defendant reasonable time to obtain counsel, would
unreasonably deny the defendant or the Government continuity of
counsel, or 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 of 6 --

5
Id. § 3161(h)(7)(B).
The district court conducted a proper individualized balancing of these factors
and found that the need for a continuance outweighed Smith’s and the public’s
interests in a speedy trial. The court explained that “[b]ecause § 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.” But in this case, the district court determined that the
COVID-19 pandemic specifically affected the court’s ability to conduct an in-person
trial and that the trial could not safely occur in Sacramento before some time in 2021.
Concluding that dismissal of the indictment for violation of the Act “would be likely
to make a continuation of [Smith’s] case impossible,” the court found that an ends
of justice continuance was warranted. See id. § 3161(h)(7)(B)(i). The court further
found the relative non-complexity of the case to weigh in favor of Smith and found
the pre-indictment delay and competency of counsel factors to be neutral. See
id. § 3161(h)(7)(B)(ii)–(iv). The court also considered several non-statutory factors
and concluded that those factors weighed in favor of granting an ends of justice
continuance.2
2 Smith also appears to argue that the district court erred in denying his motion
because it was not impossible to hold a jury trial. We reject this argument as it is

-- 5 of 6 --

6
Because the district court did not err, we need not address the remaining
Bauman factors. See Burlington, 408 F.3d at 1146 (“[T]he absence of the third
factor, clear error, is dispositive.”). In any event, the district court’s order did not
“manifest a persistent disregard of the federal rules” nor did it raise legal issues of
first impression. Bauman, 557 F.2d at 655.3
PETITION DENIED.
based on an erroneous reading of the Speedy Trial Act’s ends of justice provision.
See United States v. Olsen, __ F. 3d __, No. 20-50329, at 24 (9th Cir. 2021) (per
curiam).
3 Smith does not appear to challenge the district court’s ruling on his Sixth
Amendment claim. Regardless, we conclude the district court properly evaluated
the Barker v. Wingo factors and correctly found that Smith failed to carry his burden
to demonstrate a Sixth Amendment violation. See 407 U.S. 514, 530 (1972).

-- 6 of 6 --