UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 20-cr-38-JD Opinion No. 2020 DNH 114 Gabriel Alexander Diaz-Nivar
O R D E R
Defendant Gabriel Alexander Diaz-Nivar moves (doc. no. 29)
for an individualized determination of whether the time period
during which the court has continued his criminal jury trial
because of the Coronavirus Disease 2019 (COVID-19) pandemic
should be excluded from the trial clock under the Speedy Trial
Act, 18 U.S.C. § 3161. Diaz-Nivar asserts that his “motion is
filed pursuant to this Court’s May 28, 2020 order and is
intended to be without prejudice to Mr. Diaz-Nivar’s right to
file a timely motion to dismiss under the local rules.” Doc. 29
at 1. The government objects to Diaz-Nivar’s motion. The court
held a motion hearing by videoconference on July 1, 2020.
Background
A. COVID-19 Standing Orders
In response to the global COVID-19 pandemic and states of
emergency declared by the President of the United States and the Governor of New Hampshire, the Chief Judge of the District of
New Hampshire has issued several standing orders addressing
court operations during the pandemic. As relevant to Diaz-
Nivar, on March 20, 2020, the court continued “[a]ll civil and
criminal jury trials scheduled to begin before May 1, 2020
. . . .” Court Operations under the Exigent Circumstances
Created by COVID-19, ADM-1, Order 20-5 (Mar. 20, 2020) (“Order
20-5”) at 2 ¶ 7. On April 20, 2020, the court continued all
criminal jury trials through June 1, 2020. See doc. 25, Order
Clarifying Speedy Trial Act Findings in Response to Exigent
Circumstances Created by COVID-19, ADM-1, Order 20-16 (Apr. 15,
2020) (citing Order 20-15). On May 13, 2020, the court
continued all criminal jury trials through July 1, 2020. Order
Extending Deadlines in Prior Standing Orders, ADM-1, Order 20-17
(May 13, 2020) (“Order 20-17”). Finally, on June 17, 2020, the
court continued all criminal jury trials through August 1, 2020.
Order Extending Deadlines in Prior Standing Orders, ADM-1, Order
20-21 (June 17, 2020) (“Order 20-21”).
In all of its continuance orders issued due to COVID-19,
the court has excluded the time during which the trials were
continued from the seventy-day trial clock under the Speedy
Trial Act. Citing 18 U.S.C. § 3161(h)(7)(A), the court reasoned
that the “ends of justice served” by continuing criminal jury
trials outweighed the best interest of the public and the
2 defendants’ rights to speedy trials. Order 20-5 at 2-3 ¶ 8.1 In
particular, the court noted its “reduced ability to obtain an
adequate spectrum of jurors” and the “public health
considerations,” which include the Center for Disease Control’s
advice that people engage in “social distancing.” Id.
On May 28, 2020, the court made it clear that “[e]ach
district judge on this court adopts the excludable time and
‘ends of justice’ findings contained in the Speedy Trial Act
order in ADM-1, Order 20-5, and applies those findings to all
criminal cases continued by ADM-1, Order 20-17.” Doc. 27, Order
Circumstances Created by COVID-19, ADM-1, Order 20-19 (May 28,
2020) (“Order 20-19,” signed by the Chief Judge, District
Judges, and Magistrate Judge of the District of New Hampshire).
The court added the following:
The judges on this court continue to agree—in light of the unique circumstances presented by this public health emergency as described in ADM 1, 20-5 and ADM 1, 20-17—that issuing individual findings in each separate case would be redundant and unnecessary and a waste of scarce judicial resources. The Speedy Trial Act “ends of justice” findings in each case are—due to the nature of this public health emergency—applicable generally to all cases before this court. Thus, a particularized finding in each case would be redundant.
1 In Order 20-15, Order 20-17, and Order 20-21, the court adopted the reasoning for ordering the continuances and excluding the time from Order 20-5.
3 Id. However, the court provided a caveat that “[w]ithin seven
(7) days of the date this order is docketed, any defendant who
has an individualized concern not addressed by this order may
file a motion for a determination regarding his or her rights
under the Speedy Trial Act, and the court will consider the ends
of justice finding as to that defendant de novo.” Id.
B. Diaz-Nivar’s Case
Diaz-Nivar made his initial appearance on a complaint on
January 27, 2020. He is charged with conspiracy to distribute a
controlled substance, in violation of 18 U.S.C. § 371 and 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(vi), and 846 (Count 1). He has
been detained pending trial. Diaz-Nivar’s trial was scheduled
for May 5, 2020, but it has been continued to August 4, 2020
under Order 20-15, Order 20-17, and Order 20-21.
Discussion
Diaz-Nivar contends the Speedy Trial Act’s trial clock
should not be stopped during the time period that his trial has
been continued by the court sua sponte. He asserts that the
“ends of justice” do not outweigh his or the public’s interest
in trying him. In support, Diaz-Nivar contends that federal
criminal trials are possible because one recently occurred in
the Northern District of Texas.
4 The government responds, arguing that many other courts
have made similar determinations that the “ends of justice”
warrant excluding from the trial clock the duration of
continuances due to the COVID-19 pandemic. The government adds
that prior disturbances at regional and local levels have
warranted excluding continuance time under the “ends of justice”
provision in § 3161(h)(7)(A). Diaz-Nivar did not file a reply.
At the motion hearing, Diaz-Nivar noted his intent to file
a motion to dismiss based on a speedy trial issue unrelated to
COVID-19 continuances, but also noted that his primary concern
is ensuring that he is not waiving his speedy trial rights with
respect to COVID-19 continuances. Diaz-Nivar stated that his
trial will be short and involve relatively straightforward
issues. Diaz-Nivar’s counsel also acknowledged that, due to the
pandemic, he has not been able to meet with Diaz-Nivar with a
frequency ideal for preparing for trial. The government asked
the court to maintain its reasoning for excluding the
continuance time stated in its standing orders. The government
also noted that it did not take issue with Diaz-Nivar’s
preservation of his speedy trial rights.
The Speedy Trial Act dictates that “[i]n any case in which
a plea of not guilty is entered, the trial of a defendant
charged in an information or indictment with the commission of
an offense shall commence within seventy days from the filing
5 date (and making public) of the information or indictment, or
from the date the defendant has appeared before a judicial
officer of the court in which such charge is pending, whichever
date last occurs.” 18 U.S.C.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 20-cr-38-JD Opinion No. 2020 DNH 114 Gabriel Alexander Diaz-Nivar
O R D E R
Defendant Gabriel Alexander Diaz-Nivar moves (doc. no. 29)
for an individualized determination of whether the time period
during which the court has continued his criminal jury trial
because of the Coronavirus Disease 2019 (COVID-19) pandemic
should be excluded from the trial clock under the Speedy Trial
Act, 18 U.S.C. § 3161. Diaz-Nivar asserts that his “motion is
filed pursuant to this Court’s May 28, 2020 order and is
intended to be without prejudice to Mr. Diaz-Nivar’s right to
file a timely motion to dismiss under the local rules.” Doc. 29
at 1. The government objects to Diaz-Nivar’s motion. The court
held a motion hearing by videoconference on July 1, 2020.
Background
A. COVID-19 Standing Orders
In response to the global COVID-19 pandemic and states of
emergency declared by the President of the United States and the Governor of New Hampshire, the Chief Judge of the District of
New Hampshire has issued several standing orders addressing
court operations during the pandemic. As relevant to Diaz-
Nivar, on March 20, 2020, the court continued “[a]ll civil and
criminal jury trials scheduled to begin before May 1, 2020
. . . .” Court Operations under the Exigent Circumstances
Created by COVID-19, ADM-1, Order 20-5 (Mar. 20, 2020) (“Order
20-5”) at 2 ¶ 7. On April 20, 2020, the court continued all
criminal jury trials through June 1, 2020. See doc. 25, Order
Clarifying Speedy Trial Act Findings in Response to Exigent
Circumstances Created by COVID-19, ADM-1, Order 20-16 (Apr. 15,
2020) (citing Order 20-15). On May 13, 2020, the court
continued all criminal jury trials through July 1, 2020. Order
Extending Deadlines in Prior Standing Orders, ADM-1, Order 20-17
(May 13, 2020) (“Order 20-17”). Finally, on June 17, 2020, the
court continued all criminal jury trials through August 1, 2020.
Order Extending Deadlines in Prior Standing Orders, ADM-1, Order
20-21 (June 17, 2020) (“Order 20-21”).
In all of its continuance orders issued due to COVID-19,
the court has excluded the time during which the trials were
continued from the seventy-day trial clock under the Speedy
Trial Act. Citing 18 U.S.C. § 3161(h)(7)(A), the court reasoned
that the “ends of justice served” by continuing criminal jury
trials outweighed the best interest of the public and the
2 defendants’ rights to speedy trials. Order 20-5 at 2-3 ¶ 8.1 In
particular, the court noted its “reduced ability to obtain an
adequate spectrum of jurors” and the “public health
considerations,” which include the Center for Disease Control’s
advice that people engage in “social distancing.” Id.
On May 28, 2020, the court made it clear that “[e]ach
district judge on this court adopts the excludable time and
‘ends of justice’ findings contained in the Speedy Trial Act
order in ADM-1, Order 20-5, and applies those findings to all
criminal cases continued by ADM-1, Order 20-17.” Doc. 27, Order
Circumstances Created by COVID-19, ADM-1, Order 20-19 (May 28,
2020) (“Order 20-19,” signed by the Chief Judge, District
Judges, and Magistrate Judge of the District of New Hampshire).
The court added the following:
The judges on this court continue to agree—in light of the unique circumstances presented by this public health emergency as described in ADM 1, 20-5 and ADM 1, 20-17—that issuing individual findings in each separate case would be redundant and unnecessary and a waste of scarce judicial resources. The Speedy Trial Act “ends of justice” findings in each case are—due to the nature of this public health emergency—applicable generally to all cases before this court. Thus, a particularized finding in each case would be redundant.
1 In Order 20-15, Order 20-17, and Order 20-21, the court adopted the reasoning for ordering the continuances and excluding the time from Order 20-5.
3 Id. However, the court provided a caveat that “[w]ithin seven
(7) days of the date this order is docketed, any defendant who
has an individualized concern not addressed by this order may
file a motion for a determination regarding his or her rights
under the Speedy Trial Act, and the court will consider the ends
of justice finding as to that defendant de novo.” Id.
B. Diaz-Nivar’s Case
Diaz-Nivar made his initial appearance on a complaint on
January 27, 2020. He is charged with conspiracy to distribute a
controlled substance, in violation of 18 U.S.C. § 371 and 21
U.S.C. §§ 841(a)(1), (b)(1)(A)(vi), and 846 (Count 1). He has
been detained pending trial. Diaz-Nivar’s trial was scheduled
for May 5, 2020, but it has been continued to August 4, 2020
under Order 20-15, Order 20-17, and Order 20-21.
Discussion
Diaz-Nivar contends the Speedy Trial Act’s trial clock
should not be stopped during the time period that his trial has
been continued by the court sua sponte. He asserts that the
“ends of justice” do not outweigh his or the public’s interest
in trying him. In support, Diaz-Nivar contends that federal
criminal trials are possible because one recently occurred in
the Northern District of Texas.
4 The government responds, arguing that many other courts
have made similar determinations that the “ends of justice”
warrant excluding from the trial clock the duration of
continuances due to the COVID-19 pandemic. The government adds
that prior disturbances at regional and local levels have
warranted excluding continuance time under the “ends of justice”
provision in § 3161(h)(7)(A). Diaz-Nivar did not file a reply.
At the motion hearing, Diaz-Nivar noted his intent to file
a motion to dismiss based on a speedy trial issue unrelated to
COVID-19 continuances, but also noted that his primary concern
is ensuring that he is not waiving his speedy trial rights with
respect to COVID-19 continuances. Diaz-Nivar stated that his
trial will be short and involve relatively straightforward
issues. Diaz-Nivar’s counsel also acknowledged that, due to the
pandemic, he has not been able to meet with Diaz-Nivar with a
frequency ideal for preparing for trial. The government asked
the court to maintain its reasoning for excluding the
continuance time stated in its standing orders. The government
also noted that it did not take issue with Diaz-Nivar’s
preservation of his speedy trial rights.
The Speedy Trial Act dictates that “[i]n any case in which
a plea of not guilty is entered, the trial of a defendant
charged in an information or indictment with the commission of
an offense shall commence within seventy days from the filing
5 date (and making public) of the information or indictment, or
from the date the defendant has appeared before a judicial
officer of the court in which such charge is pending, whichever
date last occurs.” 18 U.S.C. § 3161(c)(1). The Speedy Trial
Act, however, provides many exceptions during which periods of
delay in a defendant’s trial are excluded from the seventy-day
trial clock. As relevant in this case, the Speedy Trial Act
excludes “[a]ny period of delay resulting from a continuance
granted by any judge on his own motion . . . if the judge
granted such continuance on the basis of his findings that the
ends of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial.” 18
U.S.C. § 3161(h)(7)(A).
In Order 20-15, Order 20-17, and Order 20-21, the court
excluded the time of the continuances from Diaz-Nivar’s trial
clock on the ground that the “ends of justice” served by
continuing Diaz-Nivar’s trial outweighed the best interest of
the public and Diaz-Nivar in a speedy trial. Diaz-Nivar
contends that this finding is faulty in his case.
In Order 20-5, the court found:
Due to the court’s reduced ability to obtain an adequate spectrum of jurors and the above-referenced public health considerations associated with criminal jury trials, the time period of the continuances implemented by this Standing Order will be excluded under the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A). The court finds that the ends of justice served by
6 ordering these continuances outweigh the best interest of the public and each defendant’s right to speedy trial.
Order 20-5 at 2-3 ¶ 8. The court reiterated that finding by
adopting the reasoning from Order 20-5 in Order 20-15, Order 20-
17, and Order 20-21. We are not faced with an epidemic, but
rather we are in the midst of what has been officially declared
to be a pandemic, which is a far more serious situation. The
universality of COVID-19 means that every participant in the
criminal justice process is at risk. Until that risk can be
satisfactorily managed so as to reasonably provide for the
public health considerations for all participants, including the
defendant and his counsel, continuances necessitated by the
pandemic are in the interest of justice and are excludable under
the Speedy Trial Act.
Diaz-Nivar does not provide any reason for why the court’s
findings are inapplicable to his individual case, and he has not
shown that there are circumstances particular to his case that
outweigh the court’s speedy trial findings and the continuances.
The anticipated short length of Diaz-Nivar’s trial certainly
does not outweigh those findings.
The court ratifies and confirms the administrative orders
referred to herein and adopts and applies them to this case.
The court has emphasized that it does not delay criminal jury
trials lightly, noting that “[e]xcept for the right of a fair
7 trial before an impartial jury, no mandate of our jurisprudence
is more important.” Order 20-19 (quoting Furlow v. United
States, 644 F.2d 764, 768–69 (9th Cir. 1981)). However, it is
to be noted that the court’s decision to continue criminal jury
trials and exclude the period of continuance from the trial
clock under 18 U.S.C. § 3161(h)(7)(A) is not without support
found in other jurisdictions. E.g., United States v. Kemprud,
2020 WL 2836784, at *3-*4 (E.D. Cal. June 1, 2020) (excluding
continuances due to COVID-19 from trial clock based on “ends of
justice” findings); United States v. Magana, 2020 WL 2527041, at
*2 (D. Utah May 18, 2020) (same); United States v. Magana-
Madrigal, 2020 WL 2476470, at *1-*2 (E.D. Tenn. May 13, 2020)
(same); United States v. Dill, 2020 WL 2083011, at *1 (D. Me.
Apr. 30, 2020) (same); United States v. Aguirre-Maldonado, 2020
WL 2029610, at *1 (D. Minn. Apr. 28, 2020) (same); see also
Furlow, 644 F.2d at 768-69 (affirming district court’s exclusion
of time under Speedy Trial Act due to disruption caused by
eruption of Mt. St. Helens); United States v. Richman, 600 F.2d
286, 293 (1st Cir. 1979) (finding that “ends of justice”
permitted excluding time of continuance from speedy trial clock
due to “paralyzing blizzard” of 1978).
8 Conclusion
Diaz-Nivar’s motion for an individualized, de novo
determination of whether the time period during the court’s sua
sponte continuances of his trial is excludable under the Speedy
Trial Act, 18 U.S.C. § 3161(h)(7)(A) is granted. Diaz-Nivar has
received the requested de novo and individualized determination.
The court, however, finds that the ends of justice served
by the court’s sua sponte continuances of Diaz-Nivar’s trial
through August 4, 2020, outweigh the public’s and Diaz-Nivar’s
right to a speedy trial. Accordingly, the time between May 5,
2020, and August 4, 2020, shall be excluded from any count of
the elapsed time period for purposes of Diaz-Nivar’s speedy
trial clock.
SO ORDERED.
__________________________ Joseph A. DiClerico, Jr. United States District Judge
July 8, 2020
cc: Counsel of Record U.S. Probation U.S. Marshal