USA v. Olson

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America,
Plaintiff,
v.
Joshua Gunnar Olson,
Defendant.
No. 22-cr-162 (DSD/DLM)
ORDER
This matter is before the Court on the government’s Motion for an Order Excluding
Testimony of a former Assistant United States Attorney (“AUSA”) and two special agents
of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), which Defendant
Joshua Olson seeks to admit at the hearing on his Motion to Dismiss for Speedy Trial and
Due Process Violations. The government argues that the Court should exclude this
testimony because it is not relevant to Mr. Olson’s motion. But, in the government’s view,
even if the testimony was relevant, the Court should still exclude it because the factual
record Mr. Olson seeks to develop is already established before the Court. Mr. Olson, for
his part, argues that the government has failed to refute the testimony’s relevance, and has
failed to follow its own procedures under Touhy1 for denying witness testimony. For the
reasons explained below, the government’s Motion for an Order Excluding Testimony is
granted.
1 United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
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BACKGROUND
Mr. Olson’s case has a lengthy history that has spanned three years, two prosecutors,
and three defense attorneys (as well as pro se litigation). In summary, Mr. Olson was
charged by indictment with a number of offenses related to a violent carjacking in 2022.
(Doc. 1.) A few months after Mr. Olson was charged, his lawyer moved the Court to
determine Mr. Olson’s competency. (Doc. 21.) The Court granted the motion on November
21, 2022. (Doc. 24.)
On April 7, 2023, Ryan Nybo, Psy.D., issued a report opining that Mr. Olson’s
delusional beliefs impaired his ability to make rational and reality-based decisions about
his legal case and prepare a reasonable defense. (Doc. 30.) Central to Dr. Nybo’s decision
was his determination that Mr. Olson “made several concerning statements” about his case.
(Id. at 10.) “Specifically, he expressed the belief that the lead ATF [Bureau of Alcohol,
Tobacco, Firearms, and Explosives] agent was actually a former coworker in the sheet
metal union . . . .” (Id.) Dr. Nybo characterized this belief as delusional and “not based in
reality.” (Id. at 8.) In large part—although not exclusively—because of this fixation, Dr.
Nybo determined Mr. Olson suffered from Delusional Disorder and recommended that he
be committed to undergo formal competency restoration proceedings. (Id. at 10-11.) The
Court held a hearing on Mr. Olson’s competency on May 11, 2023 (Doc. 34), and issued
an Order shortly thereafter finding Mr. Olson was not presently competent, and further
committing him to the custody of the Attorney General for formal competency restoration
proceedings. (See generally Doc. 35.)
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Even though Mr. Olson was formally ordered to undergo competency restoration
proceedings on May 15, 2023, he apparently remained in limbo and not in competency
restoration proceedings for over six months, until he entered the Federal Medical Center
(“FMC”) Devens on December 21, 2023. (Doc. 83 at 3.) Mr. Olson was evaluated by a
team led by Miriam Kissin, Psy.D., over a period of approximately four months. (See
generally id.) The Court received Dr. Kissin’s Mental Competency Report, by letter dated
May 23, 2024, and the Report was docketed on May 31, 2024. (Id.) The report opined that
Mr. Olson did not suffer from Delusional Disorder, and concluded he was competent. (Id.)
Although Dr. Kissin issued her Report in May 2024, several matters delayed the
hearing on Mr. Olson’s competency, including pro se appeals by Mr. Olson, logistical
issues related to witnesses, and motions for his counsel to withdraw. (See, e.g., Docs. 121,
130, 164.) Promptly after the Eighth Circuit rendered judgment on Mr. Olson’s appeal
(Doc. 155), this Court set a hearing to determine his competency. (Docs. 156, 157.) That
hearing took place on June 13, 2025. (Doc. 170.) What happened at, and after, that hearing
largely set the stage for Mr. Olson’s Motion to Dismiss, as well as the government’s Motion
for an Order Excluding Testimony.
At the competency hearing, there was no real doubt that Mr. Olson was competent.
(Doc. 182 at 12-13, 15-17.) Dr. Kissin testified, however, that she had recently learned
from the United States Attorney’s Office that Mr. Olson, in fact, did have a prior
relationship with an ATF agent in the case. (Id. at 21-22, 25.) In other words, the
underpinning of Dr. Nybo’s competency findings (that is, that Mr. Olson suffered from
Delusional Disorder because he was convinced he knew one of the investigating officers)
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was flawed; Mr. Olson was right. (Id.; see also id. at 34-35.) This Court subsequently
issued a Report and Recommendation that Mr. Olson was competent (Doc. 172), which
was adopted in its entirety on July 1, 2025 (Doc. 178).
On August 5, 2025, Mr. Olson moved the Court to dismiss the indictment arguing
that the government had violated his constitutional rights to due process and a speedy trial,
and his statutory right to a speedy trial. (Doc. 193.) Mr. Olson has submitted several matters
of evidentiary value in support of his motion. (Docs. 194, 194-1, 194-2, 207.) This included
a Report of Investigation from Special Agent Hoisington, which indicated that on
December 5, 2022, he informed AUSA Polachek that he and Mr. Olson knew each other
from a prior Union apprenticeship program. (Doc. 194-1 at 5.) Mr. Olson also submitted
exhibits of correspondence between Mr. Olson’s attorney and AUSA Emily Polachek
regarding whether, and when, the government informed Mr. Olson’s prior counsel and his
competency evaluator that Mr. Olson had a prior relationship with Special Agent
Hoisington. (Doc. 194-1.) Here, the prosecutor stated Dr. Nybo did not have a copy of
Special Agent Hoisington’s report when performing his competency evaluation, but that
the prosecutor believed the report was either emailed to Mr. Olson’s former counsel “or
maybe we discussed it by phone.” (Doc. 194-1 at 1.) Finally, Mr. Olson submitted a
declaration from his prior attorney, who swore he was not provided with a copy of Special
Agent Hoisington’s report and did not recall the prosecutor ever mentioning it. (Doc. 207
at 1-2.)
A hearing for Mr. Olson’s motions, including the Motion to Dismiss, was set for
August 28, 2025. (Doc. 181.) Mr. Olson filed a Notice of Intent to Call Witnesses on
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August 21, listing, among other witnesses, AUSA Emily Polachek, and ATF Special
Agents Caleb Hoisington and Kristopher Johnson. (Doc. 203.) The Court directed the
parties to submit letter briefs regarding the propriety of such witness testimony (Doc. 204),
and those letter briefs were received on August 26, 2025 (Docs. 205, 206.)
At the August 28, 2025, hearing on Mr. Olson’s criminal pretrial motions, Mr.
Olson’s counsel indicated that he had not served subpoenas on any of the government
witnesses but had served a so-called Touhy notice for each of them. (Doc. 212 at 27-28.)
The government objected to producing the two ATF agents and AUSA Polachek. (Id. at
36-37.) The parties expressed a lack of clarity about whether subpoenas were required and
requested additional time to meet and confer regarding that issue. (Id. at 40.) The Court
directed the parties to meet and confer on that issue no later than September 4, 2025, and
to provide an update on their respective positions no later than September 11, 2025. (Doc.
208.) The parties provided their respective updates on September 11 and September 12,
2025, but did not set forth their positions on whether subpoenas were necessary for the
government witnesses. (Docs. 213, 214.) As such, the Court ordered the parties to provide
set forth, by additional letter brief, their positions on the logistics and propriety of witness
testimony for a forthcoming evidentiary hearing on Mr. Olson’s Motion to Dismiss. (Doc.
222.) Those letter briefs were received on September 26 and September 27, 2025. (Docs.
225, 226.)
The Court then scheduled a hearing on Mr. Olson’s Motion to Dismiss for Speedy
Trial Act and Due Process Violations for October 29, 2025. (Doc. 228.) In preparation for
the October 29 hearing, the Court set a briefing schedule ordering the parties to file any
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motions to compel, to quash, or for protective order related to witnesses by October 8, and
responses filed by October 15, 2025. (Id. at 2.) The government moved the Court for an
Order excluding the testimony of AUSA Polachek and ATF Special Agents Hoisington
and Johnson. Mr. Olson has responded in opposition. (Doc. 237.) The issue is now ripe for
decision.
ANALYSIS
Mr. Olson has moved the Court to dismiss the indictment against him for what he
alleges are violations of his Sixth Amendment right to a speedy trial, his due process rights,
and his statutory rights under the Speedy Trial Act. (Doc. 193.) In support of his motion,
Mr. Olson has noticed his intent to call AUSA Emily Polachek, and ATF Special Agents
Caleb Hoisington and Kristopher Johnson. (Doc. 203.) The government objects to
producing any of these witnesses for the hearing and has moved the Court for an order
excluding their testimony because, from its perspective, their testimony is not appropriate
under Touhy and their testimony is unnecessary.2
To determine whether Mr. Olson’s Sixth Amendment right to a speedy trial has been
violated, the Court considers the “length of the delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant.” United States v. Johnson,
990 F.3d 661, 670 (8th Cir. 2021) (quoting United States v. Sprouts, 282 F.3d 1037, 1042
(8th Cir. 2002)). Under the Speedy Trial Act, if the Court determines a violation occurred,
2 Because the Court concludes that the testimony Mr. Olson seeks to elicit at the hearing is
cumulative to evidence already in the record, the Court need not reach a conclusion on the
government’s Touhy argument.
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then when “determining whether to dismiss the case with or without prejudice, the court
shall consider,” among other factors, “the facts and circumstances of the case which led to
the dismissal.” 18 U.S.C. § 3162(a)(2). In Mr. Olson’s view, testimony from the above-
listed witnesses is key to the Court’s determination about the reason for delay. Mr. Olson
also argues that the question of good faith is relevant to his request for dismissal on due
process grounds where, he contends, the Court must determine whether the government’s
conduct was so outrageous as to violate due process and warrant dismissal. United States
v. Russell, 411 U.S. 423, 431-432 (1973); United States v. Combs, 827 F.3d 790, 794-95
(8th Cir. 2016).
From Mr. Olson’s vantage, each of three witnesses “have relevant and material
testimony to offer on” his pending motion to dismiss. (Doc. 237 at 2.) He proffers that
AUSA Polachek, who was the prosecutor assigned to the case from the time of the
indictment in July 2022 until December 2024 or January 2025, will testify
as to the time and circumstances of her being informed of [the truth of Mr.
Olson’s claim that he previously knew an ATF agent assigned to the case],
whether she disclosed that information to the court, opposing counsel or the
psychologist evaluating Mr. Olson for competency, her opportunities to
disclose the information, and her reasons for failing to disclose the
information.
(Id. at 5.) Mr. Olson proffers that ATF Special Agent Hoisington will testify about Mr.
Olson recognizing him during Mr. Olson’s arrest in this case, and
how he became aware that his prior relationship with Olson was raised as an
issue in this case, [that] he prepared a report addressing this issue, his
circumstances of his decision to prepare the report, the date that he prepared
the report, when he provided the report to the prosecution, and any verbal
discussion or written correspondence he had with the prosecutor regarding
this issue.
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(Id. at 6.) As for ATF Special Agent Johnson, Mr. Olson proffers that he participated in
Mr. Olson’s arrest and his testimony “will verify that Mr. Olson recognized [Agent]
Hoisington as a previous co-worker at the time of the arrest.” (Id. at 6-7.) According, to
Mr. Olson, Agent Johnson “can explain why he or Hoisington claimed that Hoisington’s
name was Johnson. He will testify as to any communications he had regarding the issue
with Hoisington or the prosecutor in the case.” (Id. at 7.)
Although evidence on these matters has some general relevance to the determination
of Mr. Olson’s Motion to Dismiss, the Court agrees with the government that witness
testimony is unnecessary and cumulative given the evidentiary record already before the
Court. As discussed above, Mr. Olson’s Motion to Dismiss was accompanied by his current
lawyer’s declaration (Doc. 194), his prior lawyer’s declaration (Doc. 207), and a number
of exhibits that include email communications between the defense and AUSA Polachek
regarding the untimely disclosure of Special Agent Hoisington’s report (Doc. 194-1 at 6).
Also before the Court is Special Agent Hoisington’s Report, which explains his prior
knowledge of Mr. Olson, when he informed AUSA Polachek of his prior knowledge, and
the circumstances of Mr. Olson’s arrest (id. at 5). These exhibits establish a sufficient
record for the Court to consider the circumstances regarding the government’s conduct
relevant to Mr. Olson’s Motion to Dismiss.
Because the testimony Mr. Olson seeks to elicit from AUSUA Polachek, and ATF
Special Agents Hoisington and Johnson is cumulative to the evidence already established
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in the record, the Court concludes that their testimony is unnecessary. Accordingly, the
government’s Motion for an Order Excluding Testimony (Doc. 234) is granted.
SO ORDERED.
DATED: October 24, 2025 s/Douglas L. Micko
DOUGLAS L. MICKO
United States Magistrate Judge
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