Trial Delay Primarily Based on COVID Conditions Doesn’t Require Granting Motion to Dismiss

US v. Pair: Pair was charged with two counts of distribution of fentanyl on January 31, 2020 – the same day the first case of COVID-19 was confirmed in the United States. He was convicted of both counts at a trial that began 401 days later, after unsuccessfully moving to have his case dismissed for violations of the Speedy Trial Act and Sixth Amendment speedy trial rights. With the exception of time excluded due to defense counsel illness and the need for new counsel, most of the time was due to district-wide general orders continuing trials due to COVID or case-specific orders due to COVID. The district court found all that time excludable due to the ends of justice and found no Sixth Amendment denial of rights.

On appeal, the Fourth Circuit affirmed Pair’s convictions and the denial of his motion to dismiss. As to the Speedy Trial Act analysis, the court first found that the delay caused be counsel’s illness and the need for new counsel was properly excluded, even though Pair himself objected to any such continuance, as was the time needed to resolve Pair’s motion to dismiss. The court then addressed the COVID-fueled delays and ultimately found that they were all excludable, both those directly related to the general orders and those caused by specific orders entered in Pari’s case (which nonetheless incorporated the findings of the general orders regarding COVID). In those orders it was “clear that the district court contemporaneously balanced” the relevant factors and that the “result of this balancing was not in error.” “It would,” the court concluded, “be the worst kind of hindsight to say that this judgment was in error.” As for the Sixth Amendment analysis, while the 401-day delay was presumptively prejudicial (the Government agreed), the other factors did not favor Pair. In particular, the court rejected Pair’s defense was adversely impacted by his pretrial detention, noting that “were such prison conditions to establish a Sixth Amendment violation . . . entire facilities could be substantially depopulated, a result that [the Supreme Court] in no way countenanced.”