United States of America v. James Kevin Ball

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES KEVIN BALL
Defendant-Appellant.
No. 21-50306
D.C. No. 2:21-cr-00094-VAP-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted May 12, 2023**
Pasadena, California
Before: HURWITZ and R. NELSON, Circuit Judges, and KANE,*** District
Judge.
James Ball pleaded guilty to charges of transmitting harassing and
threatening interstate communications in violation of 18 U.S.C. § 875(c) but
* 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 Yvette Kane, United States District Judge for the
Middle District of Pennsylvania, sitting by designation.
FILED
MAY 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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reserved the right to appeal the district court’s denial of his Speedy Trial Act
motion to dismiss. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
“We review de novo a district court’s decision to dismiss on Speedy Trial
Act grounds and its findings of fact for clear error.” United States v. Olsen, 21
F.4th 1036, 1040 (9th Cir. 2022) (per curiam). The Speedy Trial Act’s “ends of
justice” provision, at issue here, “allow[s] for the exclusion of time where a district
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.’” Id. at 1041 (quoting 18
U.S.C. § 3161(h)(7)(A)). We will reverse an “ends of justice determination . . .
only if it is clearly erroneous.” Id. at 1040.
The Speedy Trial Act initially required that Ball’s trial begin by May 11,
2021. See 18 U.S.C. § 3161(c)(1). But, determining that the ends of justice served
by continuing the trial outweighed the best interest of the public and Ball in a
speedy trial, see id. § 3161(h)(7)(A), the district court reset the trial date from April
27, 2021, to September 14, 2021, and excluded the resulting 140-day period of
delay between those dates from the 70-day Speedy Trial Act clock. In doing so,
the district court relied principally on pandemic-related court restrictions and
related health and safety concerns but also on the month-long unavailability of the
victim to testify and defense counsel’s scheduling conflict.
We find no clear error in the district court’s application of the ends-of-

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justice exception. The district court considered the key factors identified in Olsen,
including Ball’s pretrial detention; his invocation of his right to a speedy trial; the
weighty evidence of his guilt; and the pandemic-related impediments to the district
court’s ability to safely conduct a trial, protect the health and safety of all trial
participants, and implement rigorous safety protocols to further those objectives.
See Olsen, 21 F.4th at 1046.
Furthermore, the continuance was not open-ended, Ball conceded the
seriousness of his offense, and he did not assert that he was particularly susceptible
to complications from COVID-19, all circumstances that support the district
court’s granting of a continuance and exclusion of time under the ends-of-justice
exception. See id. And the fact that other courts had resumed jury trials and grand
jury proceedings did “not mean that they [we]re necessarily holding them safely.”
Id. at 1047 n.10 (“It is unknown whether jurors, witnesses, court staff, litigants,
attorneys, and defendants are being subject to serious risks and illness.”).
Accounting for the 140-day period of delay that the district court excluded
from the 70-day clock under the ends-of-justice exception, no more than 56 days of
chargeable time elapsed from the filing of the indictment on March 2, 2021, to
September 14, 2021, and Ball does not challenge the district court’s decision to
further continue the trial from September 14 to 28, 2021. Accordingly, Ball has

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failed to establish any violation of his statutory rights under the Speedy Trial Act.1
AFFIRMED.
1 Ball also reserved the right to appeal the district court’s sua sponte ordering of a
competency hearing under 18 U.S.C. § 4241(a). On appeal, Ball argues that
because the district court erred in ordering the hearing, it wrongly excluded
resulting periods of delay from the 70-day Speedy Trial Act clock. We need not
reach this argument based on our conclusion that the district court did not clearly
err in excluding the longer, overlapping period of delay due to pandemic-related
restrictions and concerns under the Act’s ends-of-justice exception.

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