FILED
2021 MAR 16
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
21-003
CORONAVIRUS (COVID-19)
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 20-017 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 20-020, extending the
emergency provisions of the CARES Act for an additional 90 days.
The Court entered General Order 20-021 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 20-026 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.
The Court entered on September 28, 2020, General Order 20-028, extending the
emergency provisions of the CARES Act for an additional 90 days.
General Order 20-029 was entered on September 30, 2020. This Order
preserved the Court’s status in Phase I of its phased reopening plan. The Order
continued all jury trials through November 2, 2020, clarified procedures for critical
Grand Jury operations in Phase I, and left in place existing restrictions against in-
person civil and criminal hearings.
The Court entered on December 28, 2020, General Order 20-033, extending the
emergency provisions of the CARES Act for an additional 90 days.
The court entered General Order 20-030 on October 29, 2020. That Order
explained that the Court remained in Phase I of the Court’s phased reopening
plan. Most notably, the Order continued jury trials through February 1, 2021.
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Most recently, General Order 21-001 was entered on January 22, 2020,
extending Phase I of the Court’s phased reopening plan through April 1, 2021.
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 COVID-19 health crisis in
Utah and around the nation. Notwithstanding that the number of vaccinated Utahns is
rapidly increasing and new daily cases of COVID-19 in Utah are consistently falling in
recent months, we remain in the midst of the most serious global pandemic in over a
century. Globally, nearly 120 million people have been infected, and more than
2,600,000 have died from the disease. The Judicial Conference of the United States
has found that emergency conditions due to the national COVID-19 crisis have affected
and continue to materially affect the functioning of the federal courts. State and federal
courts are only now beginning to carefully move towards safely reopening.
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 guidance as well as various
directives from all branches and levels of government. Among other things, the CDC
strongly 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.
There are nationwide now over 29 million confirmed cases of Americans infected
with COVID-19, resulting in over 530,000 deaths. Utah has now confirmed nearly
400,000 cases, resulting in over 15,000 hospitalizations and more than 2,000 deaths.
COVID-19 test positivity rates in Utah remain above levels necessary to reduce
community spread. Vaccinations are proceeding in Utah but the percentage of
vaccinated persons in Utah is less than neighboring states. Taking into account all of
the available and relevant data, including the numbers of daily new cases and
hospitalizations, test positivity rates, ICU capacity in Utah hospitals, the availability of
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vaccines and the vaccination rates, the introduction of variants of the COVID-19 virus
with unknown implications, as well as enhanced treatment capabilities for those infected
with COVID-19, the Court concludes the pandemic continues to present an ongoing
health emergency in Utah. While the personal safety of the court community and those
we serve remains the Court’s top priority, conditions have improved to a point that the
Court finds those safety concerns can be adequately protected while simultaneously
expanding access to mission critical judicial functions with the limitations described
below.
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 20-029, 20-030, and 21-001 – the Court will
move to Phase II of its phased reopening plan effective April 1, 2021, as described
below.2 The Court’s web site has further information about the Resumption of Certain
In-Person Court Proceedings and in the COVID-19 Information Center.
All COVID-19 safety measures identified on the Court’s website and at the
Courthouse are mandatory. A list of the required safety measures—including masks
covering the nose and mouth, social distancing, hand sanitizing, and not entering the
Court during or after recent COVID exposure or symptoms—can be found on the
Court’s COVID-19 Information Center here: https://www.utd.uscourts.gov/covid-19-
information-center.
Subject to modification as conditions require, it is HEREBY ORDERED:
1. Jury Trials:
a. Criminal Jury Trials: Utilizing the health and safety procedures set
forth in the Court’s Petit Jury Trial Plan, the Court concludes that
conditions now safely allow for resumption of limited jury trials – one
trial at a time in the courthouse. Beginning April 29, 2021, the Court
will begin continuous, consecutive criminal jury trials. All pending
criminal cases awaiting trial have been triaged according to numerous
2
The Court’s Southern Region proceedings in St. George are addressed separately below.
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criteria, including the age of the case, the custodial status of the
defendant(s), the length of the trial required, and the availability of the
presiding judge, counsel, and witnesses. Trials are now scheduled
according to those criteria in a manner to ensure uninterrupted use of
the special proceedings courtroom for the foreseeable future. The
Court will continue to monitor conditions, expecting that conditions will
at some point permit the court to simultaneously host more than one
petit jury at a time. Additional criminal jury trials will be scheduled
accordingly. Questions concerning prospective scheduling of criminal
jury trials should be directed to the presiding judge in each case.
b. Civil Jury Trials: Constitutional considerations mandate that certain
critical criminal jury trials take precedence over pending civil matters
when allocating scarce available space and trial resources. For this
reason, all in-person civil jury trials are CONTINUED through June 30,
2021, pending further order of the Court. All in-person jury trial dates
preceding that date are VACATED. The Court may issue further
orders concerning future continuances as are necessary and
appropriate. As noted above, conditions will eventually permit more
than one jury trial at a time in the courthouse. At some point, some
judges will be available to preside over civil jury trials – even as some
criminal jury trials before other judges remain pending. Balancing
constitutional considerations, the competing interests of civil litigants
and criminal defendants, safety considerations, and courtroom
availability, prospective scheduling of civil jury trials will proceed as
soon as practicable after the Court enters Phase III of its reopening
plan. Questions concerning prospective scheduling of trial dates
should be directed to the assigned judge.3
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Provisions of this General Order pertaining to in-person jury trials do not apply to fully remote jury trials.
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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 20-009, 2020-010, 20-011, 20-012, 20-017, 20-021, 20-026, 20-
029, 20-030, and 21-001, including the procedural and practical challenges
to seating a jury in the midst of the COVID-19 pandemic the period of time
between April 1, 2021, through June 30, 2021, 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.”4 The Court nevertheless concludes an “ends of
justice” finding is necessary and appropriate in the District of Utah at this
time. Notwithstanding the improving conditions in the State of Utah, the
ongoing health emergency arising from the COVID-19 pandemic continues
to 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 June 30, 2021 from the respective speedy trial periods, is
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
4
United States v. Toombs, 574 F.3d 1262, 1269 (10th Cir. 2009).
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continues to experience 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 health risks associated with trial remain acute – even with
the improving COVID-19 conditions in Utah. Trial requires that jurors,
counsel, parties, witnesses, court personnel, and judges all be present in
the courtroom in relatively close proximity. Utilizing the Court’s Petit Jury
Trial Plan, the Court now concludes it is possible to safely host only one
jury trial at a time in space available in the courthouse. Empaneling and
hosting more than one jury at a time, conducting more than one trial at a
time, 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 criminal jury 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 the present 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: Except as otherwise ordered by the presiding
judges in individual cases (including, but not limited to, those cases
proceeding to trial under the Court’s limited resumption of jury trials
pursuant to this General Order) all trial-related deadlines in criminal cases
(including, but not limited to, deadlines concerning motion cutoff dates,
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proposed jury instructions, proposed voir dire, proposed verdict forms, plea
cutoffs, etc.) are CONTINUED.
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 II of the Court’s plan for resuming
operations, normal Grand Jury proceedings in the District may resume April
1, 2021, with the same safety protocols the United States Attorney’s Office
and the Court have utilized in recent months. Subject to revision at some
point in the future, the United States Attorney’s Office should continue to
coordinate Grand Jury proceedings with Chief Magistrate Judge Dustin
Pead (and the Court’s Jury Coordinator) to allow an opportunity to address
any changing conditions related to the COVID-19 pandemic or space
utilization conflicts that may periodically arise with the limited resumption of
criminal jury trials. Notwithstanding that normal Grand Jury proceedings
will now resume, the Court recognizes the significant backlog of Grand Jury
matters caused by the limited access to Grand Jury for over a year since
the pandemic caused the Court to suspend proceedings. The Court also
recognizes some prospective delay scheduling additional sessions with the
sitting Grand Juries to resume work and begin simultaneously working
through the backlog and current matters. As a result of these unavoidable
delays, the 30-day time period for filing an indictment is tolled as to each
defendant through June 30, 2021. See 18 U.S.C. § 3161(b). Questions
concerning Grand Jury scheduling should be directed to the United States
Attorney’s Office.
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5. Search Warrants: Between April 1, 2021, and June 30, 2021, 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. For April 2021 to
[email protected] for Magistrate
Judge Bennett;
b. For May 2021 to
[email protected] for Magistrate
Judge Romero;
c. For June 2021 to
[email protected] for Magistrate Judge
Oberg; and
d. In matters arising in the Southern Region, with St. George location
designations, such materials shall be submitted to
[email protected] for Magistrate Judge Kohler.
The courtroom deputy for the assigned judge will then communicate with
the sender to arrange the resolution of such matters via electronic means
(teleconference or video), as appropriate.
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 moving to Phase II of the Court’s
plan for resuming operations, in-person hearings in criminal cases may
resume as ordered by the presiding judge in each case. The default
will continue to be that critical hearings will be conducted by
videoconference or teleconference, as discussed below.
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Nevertheless, in view of health risks (particularly to incarcerated
defendants) and limited access to federal defendants in local jails,
critical hearings may, in the discretion of the presiding judge in each
case, be set 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 20-011, 20-020, 20-028, and
20-033 remain in effect due to the 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.
b. Other Hearings: In-person hearings are available in Phase II in the
discretion of the presiding judge in each case. Judges may set matters
for hearing in-person or remotely. Parties desiring that a hearing
proceed in a manner other than that initially set by the presiding judge
should contact the presiding judge’s chambers for direction concerning
the procedures for requesting that a hearing be changed. Judges are
encouraged to consider the effects of the ongoing pandemic when
deciding requests that hearings proceed remotely or in-person.
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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 June 30,
2021. Except as specified above, appearances in any criminal
hearings ordered by summons are CONTINUED through June 30,
2021. 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 April 1, 2021 and June 30, 2021 will not be
held in person, absent approval from Chief Judge Shelby. Such calendars
may, however, proceed electronically at the discretion of the presiding
judge.
9. Reentry and Specialty Courts: In-court reentry (specialty court) hearings
and activities are SUSPENDED through June 30, 2021. 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 court
representatives. Any deviation from these restrictions must be approved in
advance by Chief Judge Shelby.
10. Civil Hearings and Bench Trials: Consistent with Phase II of the Court’s
phased reopening plan, in-person civil hearings and bench trials are now
available in the discretion of the presiding judge in each case. Judges may
set matters for hearing in-person or remotely. Parties desiring that a
hearing proceed in a manner other than that initially set by the presiding
judge should contact the presiding judge’s chambers for direction
concerning the procedures for requesting that a hearing be changed.
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Judges are encouraged to consider the effects of the ongoing pandemic
when deciding requests that hearings proceed remotely or in-person.
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 April 1, 2021, and June 30, 2021, 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.
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 hearings described above,
and the like. The St. George Courthouse remains closed, but is proceeding
with mission-critical functions through electronic and remote means and
may open when the state court determines.
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.
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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 is 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.
SO ORDERED this 16th day of March, 2021.
BY THE COURT:
_____________________________________
ROBERT J. SHELBY
CHIEF UNITED STATES DISTRICT JUDGE
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