USA v. Shanholtzer

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States of America v. Jordan Shanholtzer, et al.
Case No. 3:19-cr-00112-TMB-DMS
By: THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: ORDER FROM CHAMBERS
The matter comes before the Court on the Final Report and Recommendation to Grant in Part and
Deny in Part Defense Motion to Compel Reasonable Access to Counsel and Digital Evidence (the
“Final R&R”).1 For the reasons discussed, the Final R&R is ADOPTED as MODIFIED as set
forth below.
I. 	More Correctional Facilities in Other States Are Allowing In-Person Legal
Visitation.
The Final R&R stated that as of March 15, 2021, correctional facilities in 38 other states allowed
some sort of in-person attorney visitation.2 That number has significantly increased since the Final
R&R was issued; currently, correctional facilities in 47 states and the District of Columbia allow
in-person legal visitation.3 Only correctional facilities in Alabama, Mississippi, and Virginia are
currently barring in-person legal visitation.4
This information supports the Court’s conclusion that the Alaska Department of Corrections’
(“DOC”) denial of in-person visitation with physical barriers, such as plexiglass, was an
exaggerated response to COVID-19 concerns; the fact that so many other facilities are currently
providing in-person visitation to inmates is evidence that it can be done without significant risks.
See Morrison v. Hall, 261 F.3d 896, 905 (9th Cir. 2001).
II. 	The Number of COVID Cases in DOC Facilities Has Increased Over the Last
Month, But They Remain Below the Number of Cases at the Time of the
Evidentiary Hearing.
The findings in the Final R&R were based on data current as of March 15, 2021, the date of the
evidentiary hearing on the motion. At that time, 52 inmates were testing positive for COVID-19
1 Dkt. 301 (Final R&R).
2 Id. at 4 (citing Dkt. 282 at 92 (Hearing Tr.)).
3 The Marshall Project, How Prisons in Each State Are Restricting Visits Due to Coronavirus,
https://www.themarshallproject.org/2020/03/17/tracking-prisons-response-to-coronavirus 	(last
visited July 30, 2021). During the evidentiary hearing, the defense admitted Exhibit D-3, which
was a printout of data from The Marshall Project from March 1, 2021. The Marshall Project does
not make clear which states allow in-person contact visitation with no physical barrier, but only
provides whether in-person legal visitation has resumed. See id.
4 Id.
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in all DOC facilities.5 As of August 2, 2021, 38 inmates were testing positive for COVID-19 in all
DOC facilities. This information was provided to the Court by the U.S. Marshals Service, based
upon DOC statistics.
The Final R&R noted that there were 1,360 inmates testing positive for COVID-19 in DOC
facilities statewide in December 2020, that number went down to 479 in January 2021; 13 in
February 2021; four on March 8, 2021; and 52 on March 15, 2021.6 As demonstrated in the chart
and graph below,7 COVID cases in DOC facilities declined from March 15 through mid-July and
have been increasing somewhat since July 19, 2021. While cases are increasing, current COVID
case numbers in DOC facilities are still below the number of cases relied on in the Final R&R and
are far below the numbers DOC saw in December 2020 and January 2021.
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5 Dkt. 301 at 5 (citing Dkt. 282 at 215–16).
6 Id.
7 The Court takes judicial notice of the data provided by the Department of Corrections and
reported to the Court by the U.S. Marshals Service.
-100
100
300
500
700
900
1100
1300
1500
12/1/2020 	1/1/2021 	2/1/2021 	3/4/2021 	4/4/2021 	5/5/2021 	6/5/2021 	7/6/2021 	8/6/2021
Trend of Positive COVID Cases in all DOC Facilities
52 cases at the time of the
evidentiary hearing
(March 15, 2021)
38 cases currently
(August 2, 2021)
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Date
Positive COVID (All DOC Facilities)
Federal Inmates 	All Inmates
12/1/2020 	68 	1360
1/4/2021 	66 	479
2/8/2021 	0 	7
2/22/2021 	1 	13
3/1/2021 	1 	6
3/8/2021 	0 	4
3/15/2021 	1 	52
4/5/2021 	1 	5
6/7/2021 	0 	1
6/21/2021 	0 	5
7/6/2021 	0 	2
7/15/2021 	0 	3
7/19/2021 	1 	31
7/26/2021 	3 	24
8/2/2021 	3 	38
III. Conclusion
The Court GRANTS in part and DENIES in part the defense Motion to Compel Reasonable
Access to Counsel and Digital Evidence at Docket 266. The Court FINDS that DOC’s pre-
injunction counsel visitation policy’s distinction based on an inmate’s vaccination status
violates the defendants’ Sixth Amendment rights to counsel and Fifth Amendment rights to due
process, THEREFORE, the Court directs the DOC to allow in-person contact attorney-client
visitation to inmates regardless of their vaccination status.
The DOC should accommodate requests for:
(1) in-person counsel visitation with a physical barrier for vaccinated and unvaccinated
inmates;
(2) requests for in-person counsel visitation without a barrier within 24 hours for vaccinated
inmates, subject to facility capacity limitations; and
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(3) requests for in-person counsel visitation without a barrier within 24 hours for
unvaccinated inmates, if the inmate is willing to be quarantined for 14 days after visitation
and the facility has the capacity for the quarantine.
Inmates should not be denied visitation absent good cause, such as an attorney or his/her client
presenting signs of COVID-19. When in-person visitation without a physical barrier is denied,
DOC is directed to keep a record of the denial and the reasons for such denial.
The Court denies the defense’s request for a Court visit to DOC facilities and denies the defense’s
request that the Court order the DOC to develop new private discovery review procedures.
Based on the record before the Court, in-person visits without a physical barrier between attorneys
and their clients can now be safely resumed, regardless of vaccination status with the utilization of
quarantine, thus ensuring defendants’ Sixth Amendment rights are protected and there is an
opportunity for adequate pretrial preparation.
Should the realities of COVID-19 and its variants significantly change or new information
regarding the efficacy of the COVID-19 vaccine become available, the DOC may alter its visitation
procedures accordingly, but must provide prior notice to this Court of such changes, including
detailed justification for the change.
Accordingly, for the foregoing reasons, the Final R&R is ADOPTED as MODIFIED and the
Motion to Compel at Docket 266 is GRANTED in part and DENIED in part.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: August 5, 2021.
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