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33 UNITED STATES DISTRICT COURT

44 DISTRICT OF NEVADA

55 * * *

66 GEORGE WYATT ELMS, and TRAVIS Case No. 3:20-cv-00253-MMD-CLB KLYN, (Appeal from 77 Case No. 3:20-mj-00036-CLB) Appellants, 88 v. ORDER

99 UNITED STATES OF AMERICA,

1100 Appellee.

1111 1122 I. SUMMARY 1133 This is an appeal from Magistrate Judge Carla L. Baldwin’s order in U.S. v. Elms, 1144 Case No. 3:20-mj-00036-CLB, ECF No. 24 (D. Nev. Filed April 1, 2020) (“Underlying 1155 Case”) granting the government’s motion to continue Appellants George Wyatt Elms and 1166 Travis Klyn’s1 preliminary hearings and extending the deadline by which their indictments 1177 must issue (the “Order”).2 (ECF No. 1.) Because the Court is persuaded by Appellants’ 1188 argument that Judge Baldwin clearly erred in the Order—and as further explained 1199 below—the Court will vacate the Order and remand this case to Judge Baldwin with 2200 instructions to immediately release Elms and Klyn under

(d). 2211 /// 2222 ///

2233

2244 1Klyn filed a motion to join Elms’ appeal. (ECF No. 2.) The government does not 2255 oppose Klyn’s joinder to the appeal. (ECF No. 5 at 2.) Because Klyn is materially identically situated to Elms, the Court grants his motion to join Elms’ appeal, and refers 2266 to both of them collectively as Defendants throughout this order.

2277 2The government filed a response (ECF No. 5), and Elms filed a reply (ECF No. 6). 11 II. BACKGROUND 22 The Court issues this order during the pandemic caused by the novel coronavirus 33 known as COVID-19. In the ordinary sense of the word, this is an extraordinary time. But 44 the primary question before the Court here is whether there are extraordinary 55 circumstances specific to this case justifying continuance of Elms and Klyn’s preliminary 66 hearings, and whether those circumstances outweigh the interest of justice in not holding 77 people in jail before the government has shown it has probable cause they committed a 88 crime. 99 Like many courts across the country, the Court has restricted its operations in 1100 response to COVID-19, and currently relies on video and teleconferencing technology to 1111 conduct the limited hearings that are still occurring during this period of restricted 1122 operations. As pertinent to this appeal, the Court promulgated Temporary General Order 1133 2020-053 (“TGO 2020-05”) on March 30, 2020 to implement certain provisions of the 1144 “Coronavirus Aid, Relief, and Economic Security Act” (“CARES Act”) authorizing the use 1155 of video and telephone conferencing, under certain circumstances and with the consent 1166 of the defendant, for various criminal hearings during the course of the COVID-19 1177 emergency. See CARES Act, H.R. 748,

The Underlying Case began two days after the Court issued TGO 2020-05 when 1199 the government filed a criminal complaint against Elms and Klyn—for breaking into a 2200 hardware store in Winnemucca, Nevada and stealing some 25 firearms. See Underlying 2211 Case, ECF No. 1 (filed April 1, 2020). Elms and Klyn both had their initial appearances 2222 by videoconference. See

ECF Nos. 4, 5. They also consented to have their preliminary 2233 hearings by videoconference. See

ECF Nos. 22 at 3-4, 23. Nevertheless, in the Order, 2244 2255 2266 3Available at https://www.nvd.uscourts.gov/wp-content/uploads/2020/03/GO- 2277 2020-05-re-COVID-19-Remote-Hearings.pdf. 11 Judge Baldwin decided to continue their preliminary hearings instead of holding them by 22 videoconference. (See Order.) 33 The Court incorporates Judge Baldwin’s description of the procedural history of 44 the Underlying Case from the Order, and does not fully recite it here. See Order at 1-3. 55 In short, the government requested that Elms and Klyn’s preliminary hearings be 66 continued, and its deadline for filing indictments against them be extended. See 77 Underlying Case, ECF No. 19. Elms and Klyn did not consent to having their preliminary 88 hearings continued (but, again, consented to having them by videoconference), so to 99 grant the government its requested continuance, Judge Baldwin was required to find 1100 under the governing legal framework—and did find—“that extraordinary circumstances 1111 exist and justice requires the delay[.]” (See Order at 3-7.) Judge Baldwin went on to find 1122 that the Speedy Trial Act’s “ends of justice” standard was also satisfied, for essentially 1133 the same reasons she found that “extraordinary circumstances” existed, and also 1144 because it is unlikely a functioning grand jury will exist in this district for some time, and 1155 thus also extended the government’s deadline to file indictments against Elms and Klyn. 1166 (See

.) This appeal of the Order followed. 1177 III. DISCUSSION 1188 Defendants argue Judge Baldwin’s Order is clearly erroneous,4 so the Court 1199 should vacate it, and remand this case with instructions to release them. (ECF Nos. 1, 6.) 2200 The government of course responds that Judge Baldwin’s Order should be affirmed. (ECF 2211 No. 5.) The Court agrees with Defendants. 2222 The Court finds that, as Defendants argue (ECF No. 1 at 4-12), Judge Baldwin’s 2233 factual findings in the Order are clearly erroneous, leading to the legal error of finding 2244

2255

2266 4“A district judge may reconsider any pretrial matter referred to a magistrate judge in a civil or criminal case under LR IB 1-3, when it has been shown the magistrate judge’s 2277 order is clearly erroneous or contrary to law.” LR IB 3-1(a). 11 extraordinary circumstances exist in this case when she decided to grant the 22 government’s requested continuance of Defendants’ preliminary hearings over their 33 objections. At a high level, the issue with the Order is that it treats hypothetical arguments 44 from the government as facts specific to this case, and fills in gaps in the government’s 55 minimal factual showing in its underlying motion with speculative factual assumptions that 66 may not be true. The Court also finds that Judge Baldwin erred in not making any findings 77 to support her conclusion that justice required delaying Defendants’ preliminary hearings. 88 (Id. at 12-13; see also Order at 3-7.) Moreover, Judge Baldwin erred in extending the 99 government’s deadline to file an indictment under the Speedy Trial Act, because her 1100 decision was based on the same clearly erroneous factual findings that led to her 1111 incorrectly continuing Defendants’ preliminary hearings. (See Order at 8 (“The Speedy 1122 Trial Act’s “ends of justice” standard is easily applied here because it is far less 1133 demanding than the “extraordinary circumstances” standard set forth in in Fed. R. Crim.

.1(d), which the court has already found to exist.”) (citation omitted).) 1155 The Court begins its review with Judge Baldwin’s factual findings. She first found 1166 the government “will have difficulty preparing for the preliminary hearing given the 1177 inherent limitations presented by teleworking and the availability to review documents and 1188 evidence.” (Order at 6.) But as Defendants argue, this reason does not speak to the 1199 prosecutors and law enforcement agents involved in this case, nor does it identify any 2200 documents or evidence the government needed to review, nor does it explain why the 2211 government needed to review them. (ECF No. 1 at 6-11.) Moreover, the government did 2222 not point to anything specific to this case in its underlying motion that supports this finding. 2233 See Underlying Case, ECF No. 19 at 6-7. The government should have offered something 2244 about the specific people and documents involved in the underlying case, why they were 2255 unavailable, or what information they were looking for they lacked access to because of 2266 teleworking or conditions created by COVID-19. This factual finding is therefore clearly 2277 erroneous because it is untethered to factual circumstances specific to this case. 11 Moreover, this finding is problematic because both the governing statute and rule impose 22 a burden on the government5 to make “a showing that” extraordinary circumstances exist, 33 and justice requires the delay. See

(c); see also Fed. R. Crim. P. 5.1(d); 44 see also U.S. v. Fortenberry, Case No. 2:14-MJ-673-VCF,

, at *2 (D. 55 Nev. Dec. 8, 2014) (“This, however, was the government’s burden.”). The general 66 statements the government offered untethered to the facts of this case—and upon which 77 Judge Baldwin relied—do not constitute such a showing. 88 Judge Baldwin next found that necessary documents or witnesses may be in 99 Winnemucca, Nevada, because that is where the alleged offense conduct occurred. See 1100 Order at 7. This factual finding is erroneous for several reasons. First, the government 1111 did not make this argument. See Underlying Case, ECF No. 19. Thus, in line with the 1122 discussion above, making a factual finding based on a showing the government did not 1133 offer ignores the government’s burden in seeking a continuance of a preliminary hearing 1144 over the defendant’s objection. Second, Judge Baldwin appears to have drawn this 1155 inference based on the content of the Complaint. (See Order at 7 (citing Underlying Case, 1166 ECF No. 1).) However, Defendants argue that much of the evidence, and many of the 1177 witnesses in this case—most notably the case agent—are located in Reno, Nevada. (ECF 1188 No. 1 at 10 n.23.) Judge Baldwin’s inference may therefore be incorrect. That highlights 1199 why a factual finding based on speculation is clearly erroneous. Third, to the extent Judge 2200 Baldwin drew this inference from the affidavit attached to the Complaint, the case agent 2211 states in that affidavit that he is assigned to the Reno field office, the alleged criminal 2222 incident was captured on video, Elms was arrested in Reno, made several phone calls of 2233 interest from the Washoe County Detention Center, also in Reno, and the case agent

2244

2255 5The statute and rule are written to impose this burden on the moving party in the 2266 event the defendant does not consent, so, as here, the government is the only party upon whom this burden could be imposed. See

(c); see also Fed. R. Crim. P. 2277 5.1(d). 11 found Elms’ car in Reno. See Underlying Case, ECF No. 1 at 5-16. Thus, even the 22 affidavit attached to the Complaint pointed to at least some evidence and witnesses being 33 in Reno rather than Winnemucca. Her factual finding that necessary witnesses and 44 evidence may be in Winnemucca was clearly erroneous. 55 Judge Baldwin finally found that it was “unknown whether” some witnesses would 66 be able to join a videoconference hearing, either because they lacked access to the 77 technology or because they would need to travel to prepare for their appearance at a 88 videoconference hearing. (See Order at 7.) This finding suffers from two of the flaws 99 identified above as to Judge Baldwin’s two other factual findings: (1) the government did 1100 not argue it; and (2) it is hypothetical and not tied to any facts or evidence in this case. 1111 Thus, this finding is also clearly erroneous. In sum, all three factual findings Judge 1122 Baldwin made to support her finding of “extraordinary circumstances” necessary to 1133 continue Defendants’ preliminary hearings were clearly erroneous. The Court must 1144 therefore vacate her legal conclusion based on these erroneous factual findings. 1155 Judge Baldwin only made one additional factual finding to support her 1166 determination to extend the deadline for the government to file an indictment—that there 1177 had not been a functioning grand jury since mid-March and there likely would not be one 1188 for some time. (See Order at 7-9.) The Court agrees with that finding, as far as it goes. 1199 However, there was no functioning grand jury at the time the government filed the 2200 Complaint, and there could have been no reasonable expectation that one would exist 30 2211 days from that date given the Court’s reduced operations due to COVID-19. Moreover, 2222 TGO 2020-05 was promulgated before this case began. Thus, as Defendants argue, the 2233 government should have known it would have to proceed via a preliminary hearing 2244 conducted over videoconference, rather than by obtaining an indictment, at the time it 2255 filed this case. (ECF No. 1 at 12-14.) 2266 And as Defendants also argue, the issue of Judge Baldwin’s reliance on the 2277 unavailability of a grand jury is intertwined with the legal error she committed in failing to 11 make any factual findings to support her conclusion that justice favored delaying 22 Defendants’ preliminary hearings. (ECF No. 1 at 12-14; see also Order at 7.) The basic 33 point is that the government knew or should have known it would have to proceed with a 44 preliminary hearing by videoconference within 14 days from the commencement of this 55 case, but nonetheless moved to continue the preliminary hearings two days before those 66 hearings had to occur. See Underlying Case, ECF Nos. 1, 19 (filed on April 1 and April 77 14, both after TGO 2020-05 had issued); see also U.S. v. Summerfield, Case. No. 2:20- 88 cv-00713-APG-BNW, ECF No. 4 at 1 (D. Nev. Apr. 21, 2020) (explaining that the 99 government knew it would have to proceed with a preliminary hearing when it initiated the 1100 case, likely by video or teleconference, and therefore “the witnesses and evidence should 1111 be available and ready to present in court.”). And the government did not provide any 1122 reasons for its delay in preparing for the preliminary hearings in its underlying motion 1133 beyond the general statements of abstract difficulty discussed above. See Underlying 1144 Case, ECF No. 19. 1155 The Court can therefore only infer a lack of diligence on the government’s part 1166 weighing against a finding that justice favored delaying the preliminary hearings. See 1177 Fortenberry,

, at *2 (“Rule 5.1 does not permit continuance solely to 1188 enable the government to avoid a preliminary hearing by securing an indictment[.]”) 1199 (citation and internal punctuation omitted). But Judge Baldwin reached the opposite 2200 conclusion. (See Order at 7.) In addition, she did not make any factual findings that appear 2211 specific to her conclusion that “justice requires the delay.” See

Based on the language 2222 of

(c) and Fed. R. Crim. P. 5.1(d), the government should have provided 2233 specific reasons why justice required the delay in its motion, and Judge Baldwin should 2244 have made specific findings if she found those reasons persuasive. That is in part 2255 because—as Defendant argue—preliminary hearings exist to prevent indefinite detention 2266 of pretrial detainees. (ECF No. 6 at 2-3.) 2277 11 Finally, the Court is persuaded by Defendants’ argument that the caselaw Judge 22 Baldwin relied on in her Order is distinguishable.6 (ECF No. 1 at 5 n.13; see also Order 33 at 4.) To start, the court in U.S. v. Munoz, Case No. 20MJ1138-MDD,

, 44 at *1 (S.D. Cal. Mar. 24, 2020) was operating under a temporary general order that 55 suspended “all proceedings under Federal Rule of Criminal Procedure 5.1[,]” and made 66 no reference to an order like TGO 2020-05, which permits preliminary hearings via 77 videoconference with the defendant’s consent. See TGO 2020-05. The same goes for 88 U.S. v. Xalteno-Alejo, Case No. 3:20-MJ-00822-MSB,

, at *1 (S.D. Cal.

, 2020). (See also Order at 4 (relying on this case).) Similarly, the court in U.S v. 1100 Carrilllo-Villa, Case No. 20 MAG. 3073,

, at *2 (S.D.N.Y. Apr. 2, 2020) 1111 does not appear to have been operating under an order like TGO 2020-05 that permits 1122 preliminary hearings to occur by videoconference. Moreover, in Carrilllo-Villa, the 1133 government appears to have made a much more specific showing of the impediments to 1144 holding a preliminary hearing then the government did here. See

Thus, the Court also 1155 finds Carrilllo-Villa distinguishable. (See also Order at 4 (relying on this case).) 1166 The government’s arguments in response to Defendants’ appeal fail to persuade. 1177 (ECF No. 5.) To start, the government attempts to buttress Judge Baldwin’s Order with 1188 reasons for continuances that it did not present to Judge Baldwin. (Compare

at 7-8 1199 (stating that ATF policy prohibits its agents from using the videoconferencing service 2200 Zoom), 8-9 (arguing that it is difficult to conduct hearings by videoconference because of 2211

2222

2233 6For the same reasons described herein, the Court is unpersuaded by the government’s reliance on the same set of cases. (ECF No. 5 at 6-7.) The Court also notes 2244 the government relies on these cases as examples “regarding the pandemic in general[,]” which is a good illustration of how the government’s arguments in this appeal miss the 2255 point. (Id. at 6.) One of the primary issues with the government’s motion in the Underlying 2266 Case was that it was too generalized and not tied to the facts of this case, but the government continues to make such generalized arguments on appeal. The Court finds 2277 these generalized arguments unpersuasive. 11 technical issues), 11 (noting the government plans to have a detective from Winnemucca 22 available for any preliminary hearing) with Underlying Case, ECF No. 19 (declining to 33 mention any of this).) These arguments involving new reasons for the government’s 44 requested continuances are inappropriate because the government did not raise them in 55 the Underlying Case. See United States v. Howell,

(9th Cir. 2000) 66 (holding in the related context of review of a magistrate judge’s recommendation on a 77 dispositive issue that “a district court has discretion, but is not required, to consider 88 evidence presented for the first time in a party’s objection to a magistrate judge’s 99 recommendation”); see also In re Mortg. Elec. Registration Sys., Inc.,

, 780 1100 (9th Cir. 2014) (noting in the related context of appellate review that “[g]enerally, 1111 arguments not raised in the district court will not be considered for the first time on 1122 appeal.”). If the government had these reasons for seeking a continuance all along, it 1133 should have put them in its motion directed to Judge Baldwin. 1144 But the Court will nonetheless address some of the government’s unpersuasive 1155 arguments in its response, beginning with the government’s new arguments about its 1166 potential witnesses. (ECF No. 5.) If ATF policy prohibits the case agent from using Zoom, 1177 the government could arrange for the case agent to use a device at the U.S. Attorney’s 1188 office in Reno with appropriate social distancing because the case agent is also located 1199 in Reno.7 (Id. at 7-8; see also Underlying Case, ECF No. 1 at 5 (stating he is based in 2200 Reno).) And as the government is now arguing it is unsure whether the detective in 2211 Winnemucca can use Zoom, that highlights the government’s lack of diligence, as it has 2222 been about a month since the government initiated this case, and answering that question 2233 would not take more than a phone call. (ECF No. 5 at 8.) Moreover, as described above,

2244

2255 7Defendants also point out in their reply that it would be reasonable to assume the 2266 ATF agent would have access to a non-agency digital device. (ECF No. 6 at 3.) Indeed, any digital device with a camera would allow one to participate in a Zoom video 2277 conference. 11 because the government bears the burden to show why a continuance is warranted, the 22 government was required to sort out the availability of the detective in Winnemucca before 33 it filed its motion in the Underlying Case. 44 The government also argues that proceeding by videoconference is undesirable, 55 and may involve technical issues. (Id. at 8, 10-11.) The Court reiterates that TGO 2020- 66 05 was in place before the government initiated this case, and that it implemented 77 provisions of the CARES Act expressly intended to allow criminal proceedings, including 88 preliminary hearings, to occur by video or teleconference with the defendant’s consent. 99 These provisions do not require the government’s consent. Moreover, they were 1100 expressly adopted in recognition that in-person hearings are no longer prudent given 1111 COVID-19—and are temporary, implicitly because in-person hearings are preferable to 1122 video or telephonic hearings. See TGO 2020-05. In addition, the statute governing 1133 preliminary hearings is set up to protect the right of the defendant not to be held 1144 indefinitely without probable cause. See

(d) (requiring the court release 1155 the defendant if the defendant is not given a preliminary hearing within the prescribed 1166 time period). In sum, the applicable burdens here all favor criminal defendants—and for 1177 good reasons. The government would therefore have to show more than hearings held 1188 by videoconference are undesirable to justify a continuance. 1199 Finally, the government insists that it was not inevitable it would have to proceed 2200 via preliminary hearings held over videoconference when it initiated this case. (ECF No. 2211 5 at 12-13.) The Court finds this argument unreasonable. In addition to the explanation 2222 already provided above, at the time the government initiated this case, the Court had 2233 already issued four temporary general orders restricting court operations because of 2244 COVID-19, the governor of Nevada had ordered nonessential businesses to close, and 2255 2266 2277 11 ordered everyone to stay home.8 Under these circumstances, it was unlikely a functioning 22 grand jury would exist for some time. In fact, the government even argued a grand jury 33 would not sit before May 4, 2020 in its motion in the Underlying Case. See Underlying 44 Case, ECF No. 19 at 3-4, 7-8. Thus, the government should have known it would have to 55 proceed with preliminary hearings remotely at the time it initiated this case, unless it could 66 obtain a continuance. 77 In closing, the parties agree Defendants’ preliminary hearings should have been 88 held on April 16, 2020. (ECF Nos. 1 at 15, 5 at 3.) They were not. And the Court is vacating 99 Judge Baldwin’s Order granting continuances of these hearings as clearly erroneous. The 1100 governing statute therefore leaves the Court no discretion. Elms and Klyn must be 1111 released immediately. See

(d). 1122 IV. CONCLUSION 1133 The Court notes that the parties made several arguments and cited to several 1144 cases not discussed above. The Court has reviewed these arguments and cases and 1155 determines that they do not warrant discussion as they do not affect the outcome of the 1166 issues before the Court. 1177 It is therefore ordered that George Wyatt Elms’ objection/appeal (ECF No. 1) is 1188 sustained. 1199 It is further ordered that Judge Baldwin’s Order is vacated. 2200 It is further ordered this case is remanded to Judge Baldwin to immediately release 2211 Elms and Klyn from custody under

(d). 2222 It is further ordered that Travis Klyn’s motion for joinder (ECF No. 2) is granted. 2233 ///

2244

2255 8See State of Nevada, Declaration of Emergency, Directive 010, Stay at Home 2266 Order (Issued March 31, 2020), https://nvhealthresponse.nv.gov/wp- content/uploads/2020/04/Declaration-of-Emergency-Directive-010-Stay-at-Home-3-31- 2277 20.pdf. 11 The Clerk of Court is directed to close this case. 22 DATED THIS 30th day of April 2020. 33 44 _____________________________ MIRANDA M. DU 55 CHIEF UNITED STATES DISTRICT JUDGE 66 77 88 99 1100 1111 1122 1133 1144 1155 1166 1177 1188 1199 2200 2211 2222 2233 2244 2255 2266 2277