FILED
2021 JULY 22
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
21-009
CORONAVIRUS (COVID-19)
PANDEMIC
The Court has entered numerous 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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General Order 21-001 was entered on January 22, 2020, extending Phase I of
the Court’s phased reopening plan through April 1, 2021.
The Court moved to Phase II of its phased reopening plan and began limited
criminal jury trials under authorization included in General Order 21-003, entered
on March 16, 2021.
The Court entered on June 21, 2021, General Order 21-006, extending the
emergency provisions of the CARES Act for an additional 90 days.
Most recently, the Court entered on June 30, 2021 General Order 21-007,
generally maintaining the Phase II status quo in view of disconcerting trends in
COVID-19 cases and positivity rates in the District.
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. The number of Utahns receiving vaccines is falling even
as daily cases of COVID-19 in Utah are increasing. Utah and the nation remain in the
midst of the most serious global pandemic in over a century. Globally, it is estimated
that more than 190 million people have been infected, and over 4 million 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.
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.
There are nationwide now nearly 34 million confirmed cases of Americans
infected with COVID-19, resulting in over 600,000 deaths. And case numbers are rising
nationwide in virtually every state. Utah has now confirmed more than 426,000 cases,
resulting in over 18,200 hospitalizations and slightly more than 2,400 deaths. COVID-
19 test positivity rates in Utah remain above levels necessary to reduce community
spread, and infection rates are climbing. Crucially, the Delta COVID variant is quickly
spreading in Utah. The state has been trending in recent weeks towards greater
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infection and more serious disease, particularly among those who are not vaccinated.
Vaccinations are proceeding in Utah but the percentage of vaccinated persons in Utah
is less than neighboring states, and daily vaccine administrations are steadily dropping.
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 vaccines and the vaccination rates, the introduction and
spread of several 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 remain at a point that the Court finds those safety concerns can be
adequately managed while simultaneously maintaining access to mission critical judicial
functions with the limitations previously imposed and further 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
remain in Phase II of its phased reopening plan through August 31, 2021, as described
below.2 More information is available at on the Court’s website: Resumption of Certain
In-Person Court Proceedings and 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 both for those
vaccinated and those not vaccinated can be found on the COVID-19 Information Center
webpage.
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 continue to safely permit limited jury trials – one trial at a
2
The Court’s Southern Region proceedings in St. George are addressed separately below.
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time in the courthouse. The Court will continue to hold consecutive
jury trials, prioritizing criminal jury trials as they can be scheduled. 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 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, the court has prioritized criminal jury trials when making use of
the limited trial dates available. Among criminal cases, those with in-
custody defendants have even higher priority. However, the court has
now made firm trial dates available for all in-custody defendants who
asked to proceed to trial. Trial dates have generally been made
available for all sufficiently aged criminal cases regardless of the
custodial status of the defendants. We are now at a point where the
Court is unable to fill all available trial dates with criminal cases. For
this reason, individual judges may now set civil cases for jury trials on
dates on which no criminal cases are available for trial. The priority
remains criminal cases. Individual judges have been allocated certain
limited dates for trials and may exercise their discretion to identify and
set cases for trial according to the priority assigned by the judges and
availability of parties, counsel, and witnesses. 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.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, 21-001, 21-003, and 21-007, including the procedural and
practical challenges to seating a jury in the midst of the COVID-19
pandemic, the period of time between July 31, 2021, and August 31, 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 August 31, 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 concludes it remains 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 continue
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
have resumed, 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 August 31, 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 July 31, 2021, and August 31, 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 August 2021 to
[email protected] for Magistrate
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 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: In-person hearings in criminal cases may continue
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.
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
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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, 20-
033, and 21-006 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 remain 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.
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 August
31, 2021. Except as specified above, appearances in any criminal
hearings ordered by summons are CONTINUED through August 31,
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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 July 31, 2021 and August 31, 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 August 31, 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.
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: Except as otherwise authorized by
Chief Judge Shelby, all public and bar-related functions scheduled to take
place at the federal courthouse in Salt Lake City through and including
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August 31, 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 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 hearings described above,
and the like.
Those coming to the federal courthouse in Salt Lake City must comply with
the court’s required safety measures both for those vaccinated and those
not vaccinated. The safety measures can be found at
https://www.utd.uscourts.gov/covid-19-information-center.
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 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
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State of Utah and Washington County directives and COVID-19 conditions
within the Southern Region.
SO ORDERED this 22nd day of July, 2021.
BY THE COURT:
_____________________________________
ROBERT J. SHELBY
CHIEF UNITED STATES DISTRICT JUDGE
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