UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 20-cr-09-JD Opinion No. 2020 DNH 115 Hallett Merrick
O R D E R
Defendant Hallett Merrick moves (doc. no. 16) 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. Merrick asserts that his “motion is filed
pursuant to this Court’s May 28, 2020 order and is intended to
be without prejudice to [his] right to file a timely motion to
dismiss under the local rules.” Doc. 16 at 1. The government
objects to Merrick’s motion. The court held a motion hearing by
teleconference 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 Merrick,
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. 11, 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. 14, Order
Clarifying Speedy Trial Act Findings in Response to Exigent
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. Merrick’s Case
Merrick was indicted on January 22, 2020. He is charged
with possession with intent to distribute controlled substances,
in violation of 21 U.S.C. § 841(a) and (b)(1)(C) (Count 1), and
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 2).
Merrick made his initial appearance on January 30, 2020. He
initially stipulated to detention.
In May, Merrick requested a detention hearing, which Judge
Johnstone held on May 22, 2020, by video conference. Merrick
was ordered to be detained pending trial. Merrick states that
he intends to appeal the detention order to this court.
As noted, Merrick’s trial has been the subject of several
continuances due to the COVID-19 pandemic. Merrick’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.
4 Discussion
Merrick 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, Merrick contends that federal criminal trials
are possible because one recently occurred in the Northern
District of Texas. He notes that his trial is likely to require
no more than two days.
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). Merrick did not file a reply.
At the motion hearing, Merrick reiterated his intent to
proceed to trial, but noted that his primary concern is ensuring
that he is not waiving his speedy trial rights. 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 Merrick’s
preservation of his speedy trial rights.
5 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
date (and making public) of the information or indictment, or
from the date the defendant has appeared before a judicial
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 20-cr-09-JD Opinion No. 2020 DNH 115 Hallett Merrick
O R D E R
Defendant Hallett Merrick moves (doc. no. 16) 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. Merrick asserts that his “motion is filed
pursuant to this Court’s May 28, 2020 order and is intended to
be without prejudice to [his] right to file a timely motion to
dismiss under the local rules.” Doc. 16 at 1. The government
objects to Merrick’s motion. The court held a motion hearing by
teleconference 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 Merrick,
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. 11, 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. 14, Order
Clarifying Speedy Trial Act Findings in Response to Exigent
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. Merrick’s Case
Merrick was indicted on January 22, 2020. He is charged
with possession with intent to distribute controlled substances,
in violation of 21 U.S.C. § 841(a) and (b)(1)(C) (Count 1), and
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 2).
Merrick made his initial appearance on January 30, 2020. He
initially stipulated to detention.
In May, Merrick requested a detention hearing, which Judge
Johnstone held on May 22, 2020, by video conference. Merrick
was ordered to be detained pending trial. Merrick states that
he intends to appeal the detention order to this court.
As noted, Merrick’s trial has been the subject of several
continuances due to the COVID-19 pandemic. Merrick’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.
4 Discussion
Merrick 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, Merrick contends that federal criminal trials
are possible because one recently occurred in the Northern
District of Texas. He notes that his trial is likely to require
no more than two days.
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). Merrick did not file a reply.
At the motion hearing, Merrick reiterated his intent to
proceed to trial, but noted that his primary concern is ensuring
that he is not waiving his speedy trial rights. 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 Merrick’s
preservation of his speedy trial rights.
5 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
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 can be 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 Merrick’s trial clock
on the ground that the “ends of justice” served by continuing
Merrick’s trial outweighed the best interest of the public and
Merrick in a speedy trial. Merrick contends that this finding
is faulty in his case.
6 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 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.
Merrick 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.
7 The anticipated short length of Merrick’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
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
8 286, 293 (1st Cir. 1979) (finding that “ends of justice”
permitted excluding time of continuance from speedy trial clock
due to “paralyzing blizzard” of 1978).
Conclusion
Merrick’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. Merrick 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 Merrick’s trial
through August 4, 2020, outweigh the public’s and Merrick’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 Merrick’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