Motion - United States v. Eric Shibley (Doc. 80, filed 2021-10-08)

Summary

In its response to the defendant's Motion for a Trial Without COVID-Related Restrictions, the government says the motion asks that vaccinated trial participants not be required to wear a mask and that the plexiglass partitions in the courtroom be removed. The response states that the government would not oppose mask-free trial for defense counsel and the defendant if the same rule is applied to government counsel, who are also fully vaccinated, and would not oppose removal of the partitions under current conditions. It asks the Court to take the matter under advisement and decide closer to the November 15, 2021 trial date. The signature lines read s/ Brian Werner and s/ Laura Connelly, dated October 8, 2021.

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Government’s Response to Defendant’s Motion for Trial Without  
COVID-Related Restrictions - 1 
U.S. v. Eric Shibley / CR20-174JCC  
UNITED STATES ATTORNEY 
700 STEWART ST, SUITE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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The Honorable John C. Coughenour 
 
 
 
 
 
 
 
UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF WASHINGTON 
AT SEATTLE 
 
 
UNITED STATES OF AMERICA, 
 
Plaintiff, 
 
v. 
 
ERIC SHIBLEY, 
 
              Defendant. 
NO. CR20-174JCC 
 
 
GOVERNMENT’S RESPONSE TO 
DEFENDANT’S MOTION FOR A TRIAL 
WITHOUT COVID-RELATED 
RESTRICTIONS (Dkt. #77) 
 
 
 
I. 
INTRODUCTION 
Defendant’s Motion for a Trial Without COVID-related Restrictions requests that: 
1) vaccinated trial participants not be required to wear a mask; and 2) the removal of 
plexiglass partitions in the courtroom.  The government respectfully suggests that the Court 
take defendant’s Motion under advisement.  In light of changing conditions related to the 
COVID-19 pandemic, the Court will be in a better position to determine the need (if any) 
for masking and partitions closer to the November 15, 2021 trial date.  
II. 
BACKGROUND 
In March 2020, acting under Sections 15002(b)(1) and 15002(b)(2)(A) of the 
Coronavirus, Aid, Relief, and Economic Security Act (“CARES Act”), Pub. L. 116-136, 
the Judicial Conference of the United States found that emergency conditions due to the 
Case 2:20-cr-00174-JCC     Document 80     Filed 10/08/21     Page 1 of 5

 
 
 
Government’s Response to Defendant’s Motion for Trial Without  
COVID-Related Restrictions - 2 
U.S. v. Eric Shibley / CR20-174JCC  
UNITED STATES ATTORNEY 
700 STEWART ST, SUITE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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national emergency declared by the President under the National Emergencies Act (50 
U.S.C. § 1601 et seq.) with respect to COVID–19 will materially affect the Federal courts 
generally.  For example, Section 15002 of the CARES Act provides that the chief judge of 
a district court covered by that finding may authorize the use of video conferencing for 
certain criminal proceedings.  Relatedly, the Chief Judge for this District has issued various 
COVID-19-related General Orders that describe rules for the United States District 
Courthouse.   
In May 2020, the Chief Judge entered general order 08-20, which required that “… 
all persons over two years of age seeking entry to, or occupying, the Seattle and Tacoma 
Courthouses are required to wear a face covering or mask at all times unless otherwise 
directed by the Court or a Courthouse official.”  (See Exhibit A, General Order 08-20.)    
In June 2021, the Chief Judge entered a new general order, 10-21, noting that, in 
light of improving conditions, masks were no longer required in the courthouse for 
vaccinated individuals but still required for unvaccinated ones.  (See Exhibit B, General 
Order 10-21.)   
In August 2021, after new recommendations by the Center for Disease Control and 
certain Washington counties, the Chief Judge entered general order 11-21 revising the face-
mask requirement again.  The new order requires all individuals, regardless of vaccination 
status, to wear a mask in the public areas of the courthouse.  (See Exhibit C, General Order 
11-21.)  The order also provides that individuals must wear a mask in the courtroom except 
as directed by the presiding judge.  The order continued: “Individuals who are participating 
in court proceedings will be advised to remove their mask to speak.  Witnesses will be 
asked to remove their mask while they are on the witness stand.”   
III. 
GOVERNMENT RESPONSE 
A. Defendant’s Request to Exempt Trial Participants from the Mask 
Requirement 
As an initial matter, it is the government’s understanding the Court’s general order 
means that witnesses will not be required to wear a mask while testifying.  Similarly, it is 
Case 2:20-cr-00174-JCC     Document 80     Filed 10/08/21     Page 2 of 5

 
 
 
Government’s Response to Defendant’s Motion for Trial Without  
COVID-Related Restrictions - 3 
U.S. v. Eric Shibley / CR20-174JCC  
UNITED STATES ATTORNEY 
700 STEWART ST, SUITE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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the government’s understanding that, when a trial participant such as an attorney or 
potential juror is speaking, he or she will not be required to wear a mask.  The authorization 
for witnesses and trial participants to remove their masks while speaking set out in the 
Court’s general order reflects an appropriate balance between the serious need to protect 
the public health during a pandemic and the goal of ensuring as natural a setting for 
witnesses and trial participants as can reasonably be accommodated.1 The authorization 
also resolves many of the concerns set out in defendant’s motion.      
Indeed, the only issue regarding masks in defendant’s motion that is not satisfied by 
the authorization is whether jurors, lawyers, the defendant, and other trial participants 
should be required to wear a mask when they are in the courtroom but not speaking.2 
Defendant’s references to due process and the Sixth Amendment right to a fair trial do not 
show that he has a right to a trial where counsel, witnesses, trial participants, jurors, and 
members of the public do not have to wear masks even when they are not speaking. Fed. R. 
Crim. P. 57(b) gives courts broad discretion to decide how to conduct a trial, providing that 
a “judge may regulate practice in any manner consistent with federal law, these rules, and 
the local rules of the district”; see also United States v. Warren, 601 F.2d 471, 473 (9th 
Cir. 1979) (recognizing court’s broad discretion to set rules for the conduct of their 
business).   
As defendant recognizes, the COVID-19 pandemic provides a reason for taking 
health and safety precautions during public hearings.  The CDC and other health 
organizations have consistently recognized that masking and social distancing can help 
limit the spread of COVID-19.  “Protecting the public from unnecessarily spreading a 
potentially fatal virus is not only a purpose the government may pursue; it is one it has an 
obligation to.” United States v. Babichenko, 2020 WL 7502456, *3 (D. Idaho Dec. 21, 
 
1 The past year and a half has made clear that the rates of infection in particular communities rise and fall. The 
appropriate balance rises and falls with them. 
2 It is not clear whether defendant objects to members of the public wearing a mask while observing the trial.  The 
government is not aware of a justification for such an objection. 
Case 2:20-cr-00174-JCC     Document 80     Filed 10/08/21     Page 3 of 5

 
 
 
Government’s Response to Defendant’s Motion for Trial Without  
COVID-Related Restrictions - 4 
U.S. v. Eric Shibley / CR20-174JCC  
UNITED STATES ATTORNEY 
700 STEWART ST, SUITE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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2020) (quoting Stephen E. Smith, “The Right to a Public Trial in the Time of COVID-19,” 
77 Wash & Lee L. Rev. Online 1, 6 (2020)).  For that reason, several courts have rejected 
arguments that masking requirements during the pandemic violate the confrontation clause, 
due process, or the right to a fair trial. United States v. Holder, No. 18-CR-00381-CMA, 
2021 WL 4427254, at *9 (D. Colo. Sept. 27, 2021); United States v. Watkins, No. 18-CR-
32-A, 2021 WL 3732298, at *6 (W.D.N.Y. Aug. 24, 2021); United States v. James, No. 
CR-19-08019-DLR, 2021 WL 6081501, at *3 (D. Ariz. Oct 15, 2020); United States v. 
Crittenden, No. 4:20-CR-7(CDL), 2020 WL 4917733, at *6 (M.D. Ga. Aug. 21, 2020). 
Under current conditions, the government would nevertheless not oppose 
defendant’s request that defense counsel and his client be allowed to be mask-free during 
the trial and would ask only that the same rule be applied to counsel for the government, 
who are also fully vaccinated. But given the changing nature of the pandemic and 
pandemic-related restrictions, the government respectfully suggests that the Court should 
take Defendant’s motion under advisement and determine the appropriate restrictions (if 
any) closer to the start of trial – November 15, 2021. 
B. Defendant’s Request for Removal of Plexiglass Partitions 
The government also would not oppose the removal of the plexiglass partitions 
under current conditions.  But again, the government respectfully suggests that the Court 
take this request under advisement and determine whether plexiglass partitions are 
warranted closer to the start of trial.    
// 
// 
 
 
 
 
 
 
Case 2:20-cr-00174-JCC     Document 80     Filed 10/08/21     Page 4 of 5

 
 
 
Government’s Response to Defendant’s Motion for Trial Without  
COVID-Related Restrictions - 5 
U.S. v. Eric Shibley / CR20-174JCC  
UNITED STATES ATTORNEY 
700 STEWART ST, SUITE 5220 
SEATTLE, WASHINGTON 98101 
(206) 553-7970 
 
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IV. 
CONCLUSION 
For the foregoing reasons, the government respectfully requests that the Court take 
the matter under advisement.   
Dated this 8th day of October 2021. 
 
 
 
 
 
 
Respectfully submitted, 
 
 
 
TESSA M. GORMAN 
 
 
 
 
 
 
 
Acting United States Attorney  
 
JOSEPH BEEMSTERBOER 
 
 
 
 
 
 
 
Acting Chief, Fraud Section,  
Criminal Division 
U.S. Department of Justice  
 
 
s/ Brian Werner 
 
 
 
BRIAN WERNER 
Assistant United States Attorney 
 
s/ Laura Connelly 
 
 
 
LAURA CONNELLY 
Trial Attorney 
 
Case 2:20-cr-00174-JCC     Document 80     Filed 10/08/21     Page 5 of 5

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