FILED
2020 JULY 29
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) 20-021
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 20-017 was entered 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.
Most recently, the Court entered General Order 20-020, which reauthorized for
an additional 90 days certain emergency provisions available under the CARES-
Act.
Many of the extension dates initially set forth in those General Orders are now
approaching. This General Order incorporates provisions of many of the prior orders,
includes updated information and findings, and continues suspension of many court
functions for roughly an additional four weeks.
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 declared a state of emergency on March 6, 2020,
and while restrictions have been imposed and relaxed, new daily cases of COVID-19 in
Utah continue in significant numbers. The World Health Organization advises that the
global pandemic is not subsiding. Finally, the Judicial Conference of the United States
has found that 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
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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 well over 4,000,000 confirmed cases of
Americans infected with COVID-19, resulting in nearly 150,000 deaths. Though the
number of new infections in the United States generally appears to have stabilized
around roughly 60,000 new cases daily, the State of Utah experienced in July a
significant acceleration of positive cases. To date there are nearly 40,000 confirmed
infections in Utah, resulting in more than 2,200 hospitalizations and more than nearly
300 deaths. Worse still, the available evidence suggests difficulty tracking the real
spread of COVID-19 because significant numbers of infections remain undetected due
to asymptomatic carriers, varying degrees of symptoms, a lack of adequate testing, and
other factors.
On the other hand, the Court is mindful that this extended period without the
availability of trials and grand jury proceedings significantly impacts criminal defendants,
civil litigants, and our community. While the safety of the public, litigants, lawyers,
parties, and Court staff remain the top priority, the Court is committed to increasing the
availability of mission-critical services to the community as expeditiously as conditions
permit. To that end, the Court has adopted a plan for phased reopening based largely
on guidance from the Administrative Office of the United States Courts, and national
and local health agencies. The plan calls for resuming various court functions in stages
upon satisfaction of certain required criteria. Those criteria include: (1) No COVID-19
confirmed or suspected cases in the court facility within a 14-day period, or if a
confirmed or suspected case has occurred, there has been a “deep cleaning” of
exposed areas and applicable employee self-quarantine actions have been taken; (2)
Sustained downward trending average of cumulative daily COVID-19 case counts in the
District over a 14-day period; and (3) Recission of local restrictions on movement and/or
shelter in place orders.
Once these criteria are satisfied, the Court will enter Phase I and resume “critical”
in-person hearings in civil and criminal cases. This may include “critical” bench trials.
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Upon satisfying the criteria a second time (meaning at least 14 days later with
continuing stable or reduced case counts and no cases in the courthouse), the Court
will enter Phase II. In Phase II, all in-person hearings will be available in criminal and
civil cases (though the use of teleconference and videoconference hearings will
continue as deemed appropriate by the presiding judge in each case). The grand jury
will commence regular activities in Phase II. Criminal trials will begin on a limited basis,
employing a triage process to identify and prioritize the most pressing cases.
Once the triggering criteria are again satisfied (meaning at least two weeks after
entering Phase II, with continuing stable or reducing case counts and no cases in the
courthouse), the Court will enter Phase III. This Phase allows for full resumption of
criminal trials. Once any backlog in criminal cases is sufficiently addressed, full civil
trials may resume. Full operation of Court functions, including bar-related and social
events at the courthouse, will resume in Phase IV following satisfaction of the criterial
for a fourth time.
By its nature, this plan for reopening will require continuous monitoring of
conditions in the District. It will also require flexibility and potential modification of
deadlines on a regular basis. The Court will enter further General Orders implementing
the plan in stages as outlined above. If conditions permit the Court to resume certain
functions before the dates below, those forthcoming General Orders will supersede the
dates provided herein.
In the meantime, after careful consideration of the continuing unprecedented
severity of the risks presented by this national and local emergency to the public,
litigants, counsel, court employees, agencies that support the courts, and judges; and
following consultation with appropriate stakeholders; it is HEREBY ORDERED:
1. Jury Trials: All civil and criminal jury trials are CONTINUED through
September 1, 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.
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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 2020-09, 2020-010, 2020-011, 2020-012, and 2020-017, including
the procedural and practical challenges to seating a jury in the midst of the
COVID-19 pandemic the period of time between August 1, 2020, through
September 1, 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.” 2
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 September 1, 2020 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 is experiencing significant restrictions on
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United States v. Toombs, 574 F.3d 1262, 1269 (10th Cir. 2009).
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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 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 September 1, 2020 are
CONTINUED, subject to case-specific orders entered by the judge
presiding in individual cases.
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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: Given the extraordinary conditions now present, Grand jury
proceedings in the District of Utah may resume on a limited emergency
basis. As deemed appropriate by the Court on a week-to-week basis as
conditions permit, Grand Jury panels may meet no more than once a
month, for no more than six hours on a single day. Those meetings must
comply with the safety protocols adopted by the court reopening committee
and the General Orders entered by the Court. No more than one panel
may meet in any given week. Additional Grand Jury operations will be
considered upon entry into Phase I of the phased reopening plan. In the
meantime, due to the unavailability of regular Grand Jury proceedings in
the District during this period, 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 August 1, 2020, and September 1, 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 Bennett; 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.
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The courtroom deputy 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: 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 September 1, 2020.
Appearances in any criminal hearings ordered by summons are
CONTINUED through September 1, 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 August 1, 2020 and September 1, 2020 are
CANCELED. The Court will direct that new hearing notices for mandatory
appearances be delivered for dates after September 1, 2020, at the
discretion of the assigned judge.
9. Reentry and Specialty Courts: In-court reentry (specialty court) hearings
and activities are SUSPENDED through September 1, 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
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jeopardizes the health and safety of the participants, the program staff, or
court representatives.
10. Civil Hearings and Bench Trials: Presiding judges retain discretion to
proceed with civil hearings and bench trials as necessary and appropriate
in individual cases. 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 hearing must be conducted in-
person, that judge should adopt stringent protocols in consultation with
counsel, and consistent with CDC guidance, 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 between August 1, 2020,
and September 1, 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.
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 is closed, but is
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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. The Clerk’s Office, 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.
SO ORDERED this 29th day of July, 2020.
BY THE COURT:
_____________________________________
ROBERT J. SHELBY
CHIEF UNITED STATES DISTRICT JUDGE
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