FILED
2020 SEP 30
CLERK
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
IN THE MATTER OF COURT
PROCEEDINGS AND COURT
OPERATIONS DURING THE GENERAL ORDER
CORONAVIRUS (COVID-19) 20-029
PANDEMIC
The Court has entered a number of General Orders in response to the ongoing
Coronavirus Disease (COVID-19) outbreak in Utah and around the nation.1
General Order 20-008, entered on March 12, 2020, confirmed that the Federal
Courthouse in Salt Lake City remains open with restricted access for certain
visitors.
On March 16, 2020, the Court entered General Order 20-009, suspending all
petit jury and grand jury activities in the District through May 1, 2020. In General
Order 20-009, the Court also continued all trial-related deadlines in criminal
cases, entered findings excluding certain time under the Speedy Trial Act,
vacated hearings for most matters set between March 17 and March 31, and
provided guidance concerning numerous other aspects of court operations.
On March 23, 2020, the Court entered General Order 20-010, providing certain
protections for attorney-client communications impacted by the COVID-19 crisis
and establishing protocols for various criminal proceedings and United States
Probation Office activities.
General Order 20-011 was entered March 31, 2020, making findings
implementing the emergency provisions of the Coronavirus Aid, Relief, and
Economic Security Act (CARES Act).
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These General Orders and additional information can be found on the Court’s website:
https://www.utd.uscourts.gov/united-states-district-courts-district-utah-covid-19-information-center .
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On April 28, 2020, the Court entered General Order 20-012, making additional
findings related to the Speedy Trial Act, continuing all civil and criminal trials
through June 15, 2020, and providing guidance concerning other court functions.
General Order 20-17 was entered on June 15, 2020. This Order continued all
grand jury and petit jury activities through August 1, 2020; included additional
findings relating to the Speedy Trial Act and excluded from the Act time through
August 1, 2020; and provided new information concerning a plan for phased
resumption of court activities unanimously adopted by the judges.
On June 26, 2020, the Court entered General Order 20-20, extending the
emergency provisions of the CARES Act for an additional 90 days.
The Court entered General Order 20-21 on July 29, 2020. This Order generally
continued the status quo throughout the Court and extended relevant deadlines
through September 1, 2020. It also describes the Court’s four phase reopening
plan and the gating criteria.
General Order 20-26 was entered August 26, 2020. Most notably, this Order
announced the Court’s planned September 1, 2020, transition to Phase I of the
Court’s phased reopening plan. This allowed certain critical in-person hearings
to proceed in criminal cases. All jury trials in criminal and civil cases were
continued, though critical grand jury proceedings continued on a limited basis.
Most recently, the Court entered on September 28, 2020, General Order 20-28,
extending the emergency provisions of the CARES Act for an additional 90 days.
Many of the extension dates initially set forth in those General Orders are now
approaching.
The Court continues to monitor closely the state of the health crisis in Utah and
around the nation. President Trump’s March 13, 2020 National Emergency declaration
remains in effect. Governor Herbert recently declared a new state of emergency on
August 20, 2020, and while restrictions have been imposed and relaxed, new daily
cases of COVID-19 in Utah have risen sharply in recent weeks. The World Health
Organization advises that the global pandemic is not subsiding. Globally, over
33,000,000 people have been infected, and nearly 1,000,000 have died from the
disease. Finally, the Judicial Conference of the United States has found that
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emergency conditions due to the national COVID-19 crisis have affected and will
materially affect the functioning of the federal courts.
The Centers for Disease Control and Prevention (CDC) continues to issue
guidance to combat the spread of the disease, and to promote the health and well-being
of the nation. The Court is closely monitoring the CDC’s developing guidance as well
as various directives from all branches and levels of government. Among other things,
the CDC recommends that all Americans avoid close contact with others (i.e., being
within six feet) and wear cloth face coverings in public or when around others. These
and other measures are in response to increased concerns about the extent of
asymptomatic transmission of the virus and the potential for the virus to spread through
mere conversations or breathing, in addition to airborne transmission through coughing
or sneezing.
To this date, there are nationwide now over 7,000,000 confirmed cases of
Americans infected with COVID-19, resulting in over 200,000 deaths. Utah has now
confirmed over 70,000 cases, resulting in nearly 4,000 hospitalizations and more than
450 deaths. Among other things, the Salt Lake County area has experienced significant
outbreaks of the virus in many of its jails. The available evidence continues to suggest
difficulty tracking the real spread of COVID-19 because large numbers of infections
remain undetected due to asymptomatic carriers, varying degrees of symptoms, a lack
of adequate testing, and other factors. Some scientific organizations estimate the total
number of cases in the United States could be as high as ten times the number of
reported cases. Overall, the daily number of reported new infections is generally
increasing again both in Utah and throughout the United States.
After careful consideration of publicly available data; following consultation with
appropriate stakeholders; and consistent with the Court’s phased reopening plan and
the procedures outlined in General Orders 20-17 and 20-26 – the Court will remain in
Phase I of its phased reopening plan, as described below.2 Subject to modification as
conditions require, it is HEREBY ORDERED:
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The Court’s Southern Region proceedings in St. George are addressed separately below.
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1. Jury Trials: All civil and criminal jury trials are CONTINUED through
November 2, 2020, pending further order of the Court. The Court may
issue further orders concerning future continuances as are necessary and
appropriate. Questions concerning prospective scheduling of trial dates
should be directed to the assigned judge.
2. Speedy Trial Act: For the reasons stated above relating to the ongoing
COVID-19 threat, and for the reasons previously discussed in General
Orders 2020-09, 2020-010, 2020-011, 2020-012, 2020-17, 2020-21, and
2020-26, including the procedural and practical challenges to seating a jury
in the midst of the COVID-19 pandemic the period of time between October
1, 2020, through November 2, 2020, is hereby EXCLUDED from the
respective speedy trial calculations for both the return of an indictment and
the commencement of trial within the District, pursuant to 18 U.S.C. §
3161(h)(7)(A). An “ends of justice” exclusion under the Speedy Trial Act is
disfavored and “meant to be a rarely used tool for those cases demanding
more flexible treatment.”3 The Court nevertheless concludes an “ends of
justice” finding is necessary and appropriate in the District of Utah at this
time. The expanding number of COVID-19 infections, hospitalizations, and
deaths nationally and in Utah, demand modifications to court practices to
protect public health. Courts and court operations are necessarily social
operations, involving many people.
Mindful of the Court’s constitutional responsibility to continue providing
mission-critical functions of the federal judiciary – even during the COVID-
19 outbreak – the need to protect the public health in the midst of the
ongoing deadly COVID-19 pandemic outweighs the important rights of
individual defendants and the public to speedy trials at this time. The Court
reaches this conclusion after carefully balancing the factors set forth in 18
U.S.C. § 3161(h)(7)(B). Specifically, the Court finds that the exclusion of
time through November 2, 2020 from the respective speedy trial periods, is
3
United States v. Toombs, 574 F.3d 1262, 1269 (10th Cir. 2009).
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necessary to protect the health and safety of jurors and prospective jurors,
court staff and employees, criminal defendants, counsel, law enforcement
personnel, and the public. In addition, in-custody defendants in this District
are held at local jails under the direct control of the State of Utah and
individual counties. The Court is experiencing significant restrictions on
access to federal defendants during this outbreak. Travel restrictions
further impair the ability of counsel and witnesses to appear for grand jury
proceedings or trial. Beyond that, the current environment makes it nearly
certain that the Court cannot obtain an adequate spectrum of jurors to fairly
conduct trials. Moreover, the health risks associated with trial are acute.
Trial requires that jurors, counsel, parties, witnesses, court personnel, and
judges all be present in the courtroom in relatively close proximity.
Empaneling a jury, conducting a trial, and facilitating jury deliberations, all
with due regard for health and safety, is simply not currently possible in the
physical facilities available to the court. Video and audio conferencing,
used for hearings, are not available for trials. Counsel’s ability to
adequately prepare for trial, including locating and consulting with
witnesses, and defense counsel’s ability to effectively confer with
defendants, are also greatly diminished under these circumstances.
Judges are encouraged to enter speedy trial orders in the cases over which
they preside. Judges presiding over criminal proceedings may take such
actions consistent with this Order as may be lawful and appropriate to
ensure the fairness of the proceedings and preserve the rights of the
parties – particularly where defendants are detained pending trial. Any
motion by a criminal defendant seeking an exception to any provision of
this Order should be directed to the assigned judge.
3. Trial-Related Deadlines: All trial-related deadlines in criminal cases
(including, but not limited to, deadlines concerning motion cutoff dates,
proposed jury instructions, proposed voir dire, proposed verdict forms, plea
cutoffs, etc.) scheduled to begin trial before November 2, 2020 are
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CONTINUED, subject to case-specific orders entered by the judge
presiding in individual cases.
Individual judges may continue trial-related deadlines in civil cases at their
discretion. Questions concerning trial-related deadlines should be directed
to the assigned judge.
4. Grand Jury: Consistent with Phase I of the Court’s plan for resuming
operations, critical Grand Jury proceedings may continue on a week-to-
week basis as conditions in the District permit. The United States
Attorney’s Office is directed to continue coordinating those proceedings
with Chief Magistrate Judge Dustin B. Pead. Because Grand Jury
proceedings remain limited to critical matters due to the COVID-19
pandemic, the 30-day time period for filing an indictment is tolled as to
each defendant until this Order terminates. See 18 U.S.C. § 3161(b).
Questions concerning grand jury scheduling should be directed to the
United States Attorney’s Office.
5. Search Warrants: Between October 1, 2020, and November 2, 2020, all
search warrants and other applications (including, among other things,
trap/trace and pen registers), as well as new criminal complaints for most
cases shall be submitted via email to the chambers email box of the duty
Magistrate Judge:
a.
[email protected] for Judge Oberg; and
b. In matters arising in the Southern Region, with St. George location
designations, such materials shall be submitted to
[email protected] for Judge Kohler.
The courtroom deputy will then communicate with the sender to arrange
the resolution of such matters via electronic means (teleconference or
video), as appropriate.
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6. Title III Applications: All Title III applications shall be submitted via email
to Chief Judge Shelby’s courtroom deputy, Mary Jane McNamee. The
courtroom deputy will then communicate with the sender to arrange the
resolution of such matters via electronic means (teleconference or video),
as appropriate.
7. Criminal Hearings
a. Critical Hearings: Consistent with entering Phase I of the Court’s plan
for resuming operations, critical criminal hearings may, in the discretion
of the presiding judge in each case, continue in-person or, if permitted
by the CARES Act and the General Orders entered by the Court
enacting the emergency provisions of the CARES Act, remotely by
audio or video with consent of the defendant. Critical hearings
generally include motions to suppress, evidentiary hearings, changes
of plea, sentencings, initial appearances, and detention hearings. After
meeting and conferring, the parties in cases before the Court may file
individual or stipulated motions seeking an in-person critical hearing or
to opt-out of an in-person critical hearing for counsel or for the
defendant. A motion must provide a reasonable basis for the relief
requested, which may include that counsel or the defendant are in a
high-risk category or care for an immediate family member who is
especially vulnerable, jail policies concerning isolation and transport, or
the need to present evidence. The Court’s findings in General Orders
2020-11, 2020-20, and 2020-28 remain in effect due to the
extraordinary limitations and health concerns that persist as a result of
the COVID-19 pandemic. This means that the emergency provisions
of the CARES Act remain available to defendants who wish to waive
their right to appear in-person even for critical hearings. In such
instances, critical hearings will be conducted by videoconferencing or
teleconference.
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b. Other Hearings: After meeting and conferring, any party in a criminal
case may file a motion requesting an in-person hearing for a matter not
listed above as a critical hearing. The filing party must state the other
party’s position on the motion. No response to such a motion is
required unless ordered by the Court. Any such motion should
account for the individual jail requirements associated with transporting
in-custody defendants. Jail information may be obtained from the
courtroom deputy for each presiding judge. At the discretion of the
assigned judge or upon request of the parties, videoconferencing and
teleconferencing services may be made available for hearings.
c. Miscellaneous: The protocols set forth in General Order 20-010 are
adopted and incorporated herein. Those provisions in General Order
20-010 relating to Attorney-Client Privilege (Paragraph 1) and Pretrial
Services Reports (Paragraphs 2-5) are EXTENDED through November
2, 2020. Except as specified above, appearances in any criminal
hearings ordered by summons are CONTINUED through November 2,
2020. Judges before whom such appearances were scheduled are
encouraged to notify those summoned of a new appearance date.
8. Central Violations Bureau Calendars: The Central Violations Bureau
(CVB) calendars set between October 1, 2020 and November 2, 2020 are
CANCELED. The Court will direct that new hearing notices for mandatory
appearances be delivered for dates after November 2, 2020, at the
discretion of the assigned judge.
9. Reentry and Specialty Courts: In-court reentry (specialty court) hearings
and activities are SUSPENDED through November 2, 2020. At the
discretion of the presiding judicial officer, these courts may be conducted
remotely utilizing existing telephonic or video conference options in a
manner that does not require in-person participation or that otherwise
jeopardizes the health and safety of the participants, the program staff, or
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court representatives. Any deviation from these restrictions must be
approved in advance by Chief Judge Shelby.
10. Civil Hearings and Bench Trials: Consistent with the Phase I provisions
of the Court’s phased reopening plan, presiding judges retain discretion to
proceed with critical civil hearings and critical bench trials - as necessary
and appropriate in individual cases. Any party, after meeting and
conferring, may file a motion providing the basis for seeking an in-person
bench trial or any other type of civil hearing the parties deem critical. If the
motion is granted, other parties are permitted to file a motion to opt out of
attending in person. For the reasons detailed above, including the
unprecedented and serious health concerns associated with the current
pandemic, in-person civil hearings should be held only in exceptional
circumstances. This is so even in emergency matters, including
applications for temporary restraining orders or injunctions. Absent specific
and compelling exceptional circumstances, all civil hearings should be
conducted remotely utilizing existing telephonic or video conference
options. If a judicial officer concludes that a civil hearing or bench trial is
critical and must be conducted in-person, that judge should adopt stringent
protocols in consultation with counsel, and consistent with CDC guidance
and the Court’s plan for phased resumption of operations, to ensure the
safety of the parties, witnesses, counsel, and court staff.
11. Public and Bar-Related Functions: All public and bar-related functions
scheduled to take place at the federal courthouse in Salt Lake City
between October 1, 2020, and November 2, 2020, are CANCELED. This
includes meetings of the American Inns of Court, continuing education
events, school tours, informational meetings, social functions, and
Immigration and Naturalization ceremonies. Questions concerning
rescheduling these events should be directed to the Clerk’s Office. Chief
Judge Shelby may make exceptions to this restriction on a case-by-case
basis.
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12. Public Access: The federal courthouse in Salt Lake City shall remain open
for mission-critical functions of the judiciary, but the public and members of
the bar are discouraged from coming to the courthouse unless necessary
for official court-related activities, including filing documents that cannot be
submitted electronically, attending in-person criminal hearings described
above, and the like. The St. George Courthouse remains closed, but is
proceeding with mission-critical functions through electronic and remote
means.
Those coming to the federal courthouse in Salt Lake City must comply with
all governmental guidelines, including the use of personal protection such
as masks and physical distancing.
13. Clerk’s Offices: The United States Bankruptcy Court for the District, and
other court services shall remain open pending further order of the Court,
but business hours and means of access may be limited. Specific
information about business hours will be available on each Court unit’s
internet site.
14. Southern Region Operations in St. George, Utah: The Court’s Southern
Region operations are housed in space leased within the State of Utah St.
George Courthouse. That facility and its operation are controlled by the
State of Utah. Among other things, this means the availability of in-person
Southern Region proceedings are subject to decisions by the State of
Utah and Washington County. As the resident United States District
Judge in St. George, Judge David Nuffer is granted emergency authority
to promulgate rules and procedures for Southern Region proceedings
consistent with State of Utah and Washington County directives and
COVID-19 conditions within the Southern Region.
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SO ORDERED this 30th day of September, 2020.
BY THE COURT:
_____________________________________
ROBERT J. SHELBY
CHIEF UNITED STATES DISTRICT JUDGE
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