FILED
2022 JAN 5
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
22-002
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.
On June 21, 2021, the Court entered General Order 21-006, extending the
emergency provisions of the CARES Act for an additional 90 days.
The Court entered on June 30, 2021 General Order 21-007, generally
maintaining the Phase II status quo through July 31, 2021, in view of
disconcerting trends in COVID-19 cases and positivity rates in the District.
On July 22, 2021, the Court entered General Order 21-009. That Order
extended Phase II reopening restrictions through August 31, 2021, in recognition
of data surrounding the prevalence of the COVID-19 Delta variant throughout
Utah.
The Court entered General Order 21-12 on August 27, 2021, extending Phase II
of the Court’s phased reopening plan through October 31, 2021.
The Court entered on October 1, 2021, General Order 21-014, extending the
emergency provisions of the CARES Act for an additional 90 days.
On October 27, 2021, the Court entered General Order 21-015, continuing Phase
II of the Court’s phased reopening plan through January 31, 2022.
And most recently, on January 3, 2022, the Court entered General Order 22-001,
extending the emergency provisions of the CARES Act for an additional 90 days.
Notwithstanding that many of the extension dates initially set forth in the most recent
General Orders are still several weeks away, conditions related to the Omicron variant
and its impact in the District require immediate modification of the Court’s current
activities. For the reasons explained below, the Court now moves immediately back to
Phase I of the Court’s phased reopening plan. Jury trials scheduled between now and
February 14, 2022, are vacated.
Utah and the nation remain in the midst of the most serious global pandemic in
over a century. And the rapid increase of cases resulting from the widespread
circulation of the highly contagious Omicron variant presents the possibility that the next
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several weeks may see the highest daily count totals in Utah since the pandemic began.
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 and modify 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.
Globally, it is estimated that over 280 million people have been infected by the
COVID-19 virus, resulting in nearly 5.5 million deaths. It’s likely that those numbers
significantly underestimate the actual cases and deaths. There are nationwide now
nearly 55 million cases of Americans infected with COVID-19, and over 820,000
confirmed deaths. Utah has now confirmed more than 650,000 cases, resulting in
nearly 28,000 hospitalizations and more than 3,800 deaths. Positive case counts are
accelerating in Utah, throughout the nation, and around the globe. Daily case counts in
Utah are near or above the highest point since the pandemic began. Utah posted this
week the highest daily number of new cases and deaths, and the seven-day rolling case
average is at the highest point since the pandemic began. COVID-19 test positivity
rates in Utah suggest significant community spread, and infection rates are climbing
rapidly in response to the new Omicron variant. The state has been unable for many
months reduce infection and diminish serious disease, particularly among those who
are not vaccinated. Vaccinations are proceeding at disappointing levels in Utah where
the percentage of vaccinated persons in Utah remains below rates in many neighboring
states, and daily vaccine administrations are insufficient to reverse the current trends
anytime soon.
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. The Court
further concludes the recent significant deterioration in conditions presents an acute risk
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to the court community and the community at-large. The personal safety of the court
community and those we serve remains the Court’s top priority. While safety protocols
and other measures have enabled the court to safely operate for many months in Phase
II of the Court’s phased reopening plan, the Court concludes it can no longer do so.
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
immediately return to Phase I of its phased reopening plan, and will remain in Phase I
through February 14, 2022, as described below.2 More information is available 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: All in-person civil and criminal jury trials set to commence in
the Orrin G. Hatch Courthouse in Salt Lake City prior to February 14, 2022,
are VACATED.3 Subject to scheduling limitations resulting from limited
capacity for the number of jury trials the Court can safely accommodate
when trials resume, jury trials affected by this change will receive priority
for new settings at the earliest available dates and times convenient to the
court, counsel, and parties. Among the trials affected by this General
Order, criminal jury trials will receive special consideration and priority.
Trials presently set to begin on or after February 14, 2022, will proceed in
the manner described in General Order 21-015.
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The Court’s Southern Region proceedings in St. George are addressed separately below.
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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, 21-007, 21-009, 21-012, and 21-015,
including the procedural and practical challenges to seating a jury in the
midst of the COVID-19 pandemic the period of time between January 1,
2022, and February 14, 2022, 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. 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 February 14, 2022, 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.
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United States v. Toombs, 574 F.3d 1262, 1269 (10th Cir. 2009).
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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
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 in Utah and
throughout the nation. Trial requires that jurors, counsel, parties,
witnesses, court personnel, and judges all be present in the courtroom in
relatively close proximity. The Court concludes it is no longer possible to
safely host even one jury trial at a time in space available in the
courthouse. Empaneling and hosting a jury, including facilitating jury
selection and 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.
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
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(including, but not limited to, deadlines concerning motion cutoff dates,
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.
3. Grand Jury: Consistent with Phase I of the Court’s phased reopening plan,
Grand Jury proceedings in the District are now restricted and limited to
“critical” proceedings only. The United States Attorney’s Office should
coordinate all requested Grand Jury proceedings with Chief Magistrate
Judge Dustin Pead. Without the availability of normal Grand Jury
proceedings, the Court recognizes there will necessarily be unavoidable
delays presenting matters for consideration and for returns of indictments.
As a result of these unavoidable delays, the 30-day time period for filing an
indictment is tolled as to each defendant through February 28, 2022. See
18 U.S.C. § 3161(b). Questions concerning Grand Jury scheduling should
be directed to the United States Attorney’s Office.
4. Search Warrants: Between January 1, 2022, and February 14, 2022, 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 January 2022 to
[email protected] for Magistrate
Judge Romero;
b. For February 2022 to
[email protected] for Magistrate
Judge Oberg; and
c. In matters arising in the Southern Region, with St. George location
designations, such materials shall be submitted to
[email protected] for Magistrate Judge Kohler.
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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.
5. 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.
6. Criminal Hearings
a. Critical Hearings: Critical hearings in criminal cases may continue in-
person as ordered by the presiding judge in each case. The default
will continue to be that 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 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, 21-006, 21-014, and 21-015 remain in
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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 I only for
critical matters, as determined by the presiding judge in each case.
Judges may set critical 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 February
14, 2022. Except as specified above, appearances in any criminal
hearings ordered by summons are CONTINUED through February 14,
2022. Judges before whom such appearances were scheduled are
encouraged to notify those summoned of a new appearance date.
7. Central Violations Bureau Calendars: The Central Violations Bureau
(CVB) calendars set between January 1, 2022 and February 14, 2022 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.
8. Reentry and Specialty Courts: In-court reentry (specialty court) hearings
and activities are SUSPENDED through February 14, 2022. At the
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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.
9. Civil Hearings and Bench Trials: Consistent with Phase I of the Court’s
phased reopening plan, in-person civil hearings and in-person bench trials
are available only in critical matters as determined by the presiding judge in
each case. Judges may set critical 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.
10. 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
February 14, 2022, 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 at 801-524-6100.
11. Public Access: The Orrin G. Hatch 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
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cannot be submitted electronically, attending in-person hearings described
above, and the like.
Those coming to the Orrin G. Hatch Courthouse in Salt Lake City must
comply with all governmental guidelines, including the use of personal
protection such as masks and physical distancing. In view of the
diminished effect of cloth masks to protect against the new Omicron
COVID-19 variant, visitors to the Courthouse will be required at all times to
properly wear over the nose and mouth a suitable KN95, KF94, N95, or
three-ply surgical mask. If visitors do not have such a mask, one will be
provided by the Court at the entrance to the building. 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.
12. 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.
[INTENTIONALLY BLANK]
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13. 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 5th day of January, 2022.
BY THE COURT:
_____________________________________
ROBERT J. SHELBY
CHIEF UNITED STATES DISTRICT JUDGE
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