FILED
2022 FEB 9
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
22-004
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.
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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-court-district-utah-covid-19-information-
center.
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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).
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.
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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.
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 21-012 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, the Court entered General Order 22-002 on January 5, 2022,
moving the Court back to Phase I of the Court’s phased reopening plan and
suspending jury trials through February 14, 2002.
Conditions related to the pandemic generally and the Omicron variant more
specifically have improved sufficiently in the last few weeks to permit the resumption of
jury trials and transition to Phase II of the Court’s phased reopening plan. For the
reasons explained below, the Court will move back to Phase II of the Court’s phased
reopening plan, including resumption of jury trials, effective February 14, 2022.
3
Utah and the nation remain in the midst of the most serious global pandemic in
over a century. However, the recent rapid increase of cases resulting from the
widespread circulation of the highly contagious Omicron variant has given way to rapid
and significant decreases in new daily cases. Daily case counts remain at dangerous
levels surpassed in the last two years only by the peak numbers in recent week. 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 nearly 400 million people have been infected by the
COVID-19 virus, resulting in more than 5.7 million deaths. It’s likely that those numbers
significantly underestimate the actual cases and deaths. There are nationwide now
over 76 million cases of Americans infected with COVID-19, and over 900,000
confirmed deaths. More than 4,000 Utahns have died and nearly 32,000 hospitalized
as a product of more than 900,000 cases in the State. Positive case counts are starting
to decrease in Utah, throughout the nation, and around the globe. However, save for
the peaks associated with the Omicron surge over the last month or so, daily case
counts in Utah remain near or above the highest point since the pandemic began.
COVID-19 test positivity rates in Utah indicate significant ongoing community spread,
and infection rates remain near all-time highs. 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
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enhanced treatment capabilities for those infected with COVID-19, the Court concludes
the pandemic continues to present an ongoing health emergency in Utah. However, the
Court further concludes the recent improvement in conditions in recent weeks allows the
court to return to Phase II operations throughout the Court.
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
return on February 14, 2022 to Phase II of its phased reopening plan, and will remain in
Phase II through March 31, 2022, as described below.2 More information is available
on 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 both for those
vaccinated and those not vaccinated can be found on the COVID-19 Information
Center.
Subject to modification as conditions require, it is HEREBY ORDERED:
1. Jury Trials: Utilizing the health and safety procedures set forth in the
Court’s Petit Jury Trial Plan, the Court concludes that conditions again
safely permit limited jury trials – up to one civil and one criminal jury
simultaneously at a time in the courthouse.3 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 criminal and one civil petit jury at a time. Additional jury trials will
be scheduled accordingly. Questions concerning prospective scheduling of
jury trials should be directed to the assigned judge in each case.4
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The Court’s Southern Region proceedings in St. George are addressed separately below.
3
The continuing restriction limiting the Court to one criminal jury at a time is necessary because
of the number of jurors required in criminal cases. In contrast, civil trials can proceed with as
few as six jurors – enabling the Court to safely utilize additional spaces in the courthouse.
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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, 21-015, and 22-002,
including the procedural and practical challenges to seating a jury in the
midst of the COVID-19 pandemic the period of time between February 14,
2022, and March 31, 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.”5 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 March 31, 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.
5
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 more than one criminal jury and one civil jury at a time in space
available in the courthouse. Empaneling and hosting additional juries,
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.
3. Trial-Related Deadlines: Except as otherwise ordered by the assigned
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.
4. Grand Jury: Consistent with Phase II of the Court’s phased reopening
plan, Grand Jury proceedings in the District may resume with the safety
protocols utilized by the Court and the United States Attorney’s Office in
the months predating General Order 22-002, moving the Court back to
Phase I. 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 jury trials. Notwithstanding
that modified Grand Jury proceedings will resume under this General
Order, the Court recognizes the significant backlog of Grand Jury matters
created by the suspension and/or limited availability of Grand Jury
proceedings over the last two years. 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 March 31, 2022. 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 February 14, 2022, and March 31, 2022 all
search warrants and other applications (including, among other things,
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trap/trace and pen registers), as well as new criminal complaints for most
cases shall be submitted via email to
[email protected].
In matters arising in the Southern Region, with St. George location
designations, such materials shall be submitted to
[email protected] for Magistrate Judge Kohler.
A 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
a. Critical Hearings: Critical hearings in criminal cases may continue in-
person as ordered by the assigned 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 assigned 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
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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, 21-015, and 22-001
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 assigned 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 assigned judge
should contact the assigned 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 March 31,
2022. Except as specified above, appearances in any criminal
hearings ordered by summons are CONTINUED through March 31,
2022. 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 February 14, 2022 and March 31, 2022 will
not be held in person, absent approval from Chief Judge Shelby. Such
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calendars may, however, proceed electronically at the discretion of the
assigned judge.
9. Reentry and Specialty Courts: In-court reentry (specialty court) hearings
and activities are SUSPENDED through March 31, 2022. At the discretion
of the assigned 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 in-person bench trials
are available in the discretion of the assigned 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 assigned
judge should contact the assigned 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
March 31, 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.
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12. 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
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, 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.
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 9th day of February, 2022.
BY THE COURT:
_____________________________________
ROBERT J. SHELBY
CHIEF UNITED STATES DISTRICT JUDGE
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