FILED IN THE
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
Nov 24, 2020, 11:39 am
CLERK OF COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
IN RE: ORDER AUTHORIZING THE
USE OF TELEPHONIC AND VIDEO
HEARINGS PURSUANT TO THE
CARES ACT FOR THE TIME PERIOD
NOVEMBER 24, 2020 THROUGH
FEBRUARY 7, 2021
ORDER AUTHORIZING THE USE OF TELEPHONIC AND VIDEO
HEARINGS PURSUANT TO THE CARES ACT FOR THE TIME PERIOD
NOVEMBER 24, 2020 THROUGH FEBRUARY 7, 2021
On October 9, 2020, this court entered an Order pursuant to the
Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) authorizing
the use of video/telephonic hearings for specified matters in criminal cases through
November 15, 2020. On November 12, 2020, the court entered an Order extending
that authorization for the period November 16, 2020 through February 7, 2021, in
response to the COVID-19 pandemic in the State of Hawaii and the continuing
need to limit the number of individuals entering the courthouse in order to protect
the health and safety of the public, court employees, counsel, and parties. This
Order modifies and supersedes the November 12, 2020 Order, effective November
24, 2020.
Pursuant to the CARES Act, on March 29, 2020, the Judicial
Conference of the United States found that “emergency conditions due to the
national emergency declared by the President under the National Emergencies Act
(50 U.S.C. § 1601, et seq.) with respect to COVID-19 have materially affected and
will materially affect the functioning of the federal courts generally.” This finding
is still effective. Thus, as Chief Judge for the United States District Court for the
District of Hawaii, acting pursuant to § 15002(b) of the CARES Act, the authority
granted by the Judicial Conference of the United States, and based on my own
motion, I make the following findings and hereby ORDER:
1. Pursuant to the authority granted under § 15002(b)(1) of the CARES
Act, I hereby authorize judges in the United States District Court for the District of
Hawaii, with the consent of the defendant or the juvenile after consultation with
counsel, to use video conferencing, or telephonic conferencing if video
conferencing is not reasonably available, for the following matters:
(A) Detention hearings under section 3142 of Title 18, United States Code;
(B) Initial appearances under Rule 5 of the Federal Rules of Criminal
Procedure;
(C) Preliminary hearings under Rule 5.1 of the Federal Rules of Criminal
Procedure;
(D) Waivers of indictment under Rule 7(b) of the Federal Rules of
Criminal Procedure;
(E) Arraignments under Rule 10 of the Federal Rules of Criminal Procedure;
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(F) Probation and supervised release revocation proceedings under Rule
32.1 of the Federal Rules of Criminal Procedure;
(G) Pretrial release revocation proceedings under section 3148 of Title 18,
United States Code;
(H) Appearances under Rule 40 of the Federal Rules of Criminal
Procedure;
(I) Misdemeanor pleas and sentencings as described in Rule 43(b)(2) of
the Federal Rules of Criminal Procedure; and
(J) Proceedings under chapter 403 of Title 18, United States Code
(commonly known as the “Federal Juvenile Delinquency Act”), except
for contested transfer hearings and juvenile delinquency adjudication
or trial proceedings.
2. Certain felony pleas under Rule 11 of the Federal Rules of Criminal
Procedure and felony sentencings under Rule 32 of the Federal Rules of Criminal
Procedure cannot be conducted in person without seriously jeopardizing public
health and safety. First, the court is aware that various Federal Bureau of Prison
(“BOP”) facilities throughout the nation have experienced severe COVID-19
outbreaks. It is essential that the court protect those housed at BOP facilities,
including Honolulu’s Federal Detention Center (“FDC”), from contracting
COVID-19 while outside a BOP facility and then bringing it into that facility.
Second, some defendants reside in a communal setting such as a residential
treatment program, clean-and-sober residence, women’s shelter, or group
transitional home. It is also essential that the court protect those living in
communal settings from contracting COVID-19 while outside the communal
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setting and then bringing it into that setting. Third, some defendants may have one
or more recognized vulnerabilities to COVID-19, and the potential exposure to
COVID-19 would result in seriously jeopardizing public health and safety. Thus,
the court finds that for those incarcerated at a BOP facility (including the FDC),
for those living in a communal setting, and for any individual who has a
recognized underlying medical condition that the United States Centers for Disease
Control and Prevention recognizes as being an increased risk for severe illness
from COVID-19, or any person caring for or residing in close quarters with such a
person, felony pleas under Rule 11 of the Federal Rules of Criminal Procedure and
felony sentencings under Rule 32 of the Federal Rules of Criminal Procedure
cannot be conducted in person without seriously jeopardizing public health and
safety. As a result, if a district judge in an individual case finds, for specific
reasons, that a felony plea or sentencing cannot be further delayed without serious
harm to the interests of justice, a judge may, with the consent of the defendant or
the juvenile after consultation with counsel, conduct a felony plea or sentencing by
video conferencing, or telephonic conferencing if video conferencing is not
reasonably available. This authority extends to equivalent plea, sentencing or
disposition proceedings under the Federal Juvenile Delinquency Act.
3. This Order is effective as of November 24, 2020 and remains effective
through February 7, 2021 unless earlier terminated. If the emergency persists past
February 7, 2021, I will review the situation for possible extension of authority
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pursuant to the provisions of the CARES Act. Notwithstanding the foregoing,
pursuant to the provisions of the CARES Act, this authority shall terminate on the
last day of the covered emergency period or the date on which the Judicial
Conference of the United States finds that emergency conditions due to the
national emergency declared by the President under the National Emergencies Act
with respect to the COVID-19 virus outbreak no longer materially affect the
functioning of either the Federal courts generally or the District of Hawaii
specifically.
IT IS SO ORDERED:
DATED: Honolulu, Hawaii, November 24, 2020.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
ORDER AUTHORIZING THE USE OF TELEPHONIC AND VIDEO HEARINGS PURSUANT
TO THE CARES ACT FOR THE TIME PERIOD NOVEMBER 24, 2020 THROUGH FEBRUARY 7, 2021
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