United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS'
 MOTION TO CONTINUE TRIAL
Nuffer, United States District Judge.
moved to continue trial because Mr. R. Gregory Shepard, a
named defendant, is ill, may have a heart procedure, and may
be unable to attend trial. Plaintiff responded in
opposition. Defendants replied. Defendants'
Motion is made on a permissible basis. But it is denied.
eleventh through eighteenth days of this bench trial are
scheduled to resume June 21, 2018. This case, which is three
years old, was originally set for ten days of
trial. Plaintiff has rested after presenting 16
witnesses, including Mr. Shepard. Plaintiffs examined
witnesses for nearly thirty-two hours while Defendants
cross-examined those witnesses for nearly twenty-three
hours. Mr. Shepard testified for seven hours,
nearly three of which were cross examination. Eleven
depositions were designated and have been read. The
designated portions of Mr. Shepard's deposition consisted
of well over one hundred pages.
Complaint alleges eleven causes of action
including Injunction under § 7402(a) and Injunction
under § 7408. Plaintiff seeks to enjoin a fraudulent tax
scheme and an order for disgorgement of
profits. Evidence received to date indicates that
Defendants' revenue from this scheme for the years
2009-2016 may exceed $35, 000, 000 and that tax benefits
taken by Defendants' customers for the years 2013-2016
may exceed $14, 000, 000. Defendants continue to market their
product and encourage customers to take tax benefits. Just
before trial, Defendants announced they would satisfy a debt
by transfer of lenses to existing customers who could take
tax benefits based on the market value of the
lenses. Defendants will not cease activities and
Plaintiff will not cease to be adverse without adjudication.
seek to continue trial based on the assertion that “Mr.
Shepard cannot attend trial at the time prescribed due [sic]
his illness, nor can his treatment be delayed to accommodate
trial.” In the Motion, Defendants state Mr.
Shepard has some heart issues and is scheduled for diagnostic
testing on June 22, 2018, the second day of resumed trial, to
determine if a heart stent or open heart surgery is
necessary. If a stent will repair Mr. Shepard's
heart damage, the procedure will be done that same day, June
22, 2018 and if open heart surgery is necessary
it will be scheduled “as soon as the doctor's
schedule will allow.” The motion and reply do not
indicate that Mr. Shepard's condition came on before or
after the ten days of trial already completed, during which
he did not appear ill at ease or impaired in any way as he
attended and testified.
Fillippon v. Albion Vein Slate Co., the Supreme
Court stated “that the orderly conduct of a
trial…essential to the proper protection of the right
to be heard, entitles the parties who attend for the purpose
to be present in person or by counsel at all proceedings...
” But if a litigant is “ably
represented at trial by counsel [then] ‘[t]here is no
constitutional right of a litigant to be personally present
during the trial of a civil
proceeding'.” There is no dispute that defense
counsel represents Mr. Shepard and counsel will be present at
trial. Therefore, whatever rights Mr. Shepard may have to be
present at trial are fully protected by the ability of
defense counsel to be present and represent him at trial.
Shepard voluntarily absented himself from portions of the
first ten days of trial. During the first ten days of trial,
Mr. Shepard never sat at counsel's table.
trial was originally scheduled to last only ten days. During
the first ten days of trial, it became apparent that the
parties were going to need more time. Defendant has had ample
opportunity to cross examine witnesses, including Mr.
Shepard. Coordinating the calendars of the parties, counsel
and the court was very difficult. After input of counsel, the
additional seven days of trial were set for June 21, 22,
25-29, 2018. These dates were made available by
cancelling other planned hearings and events. Plaintiff's
counsel travels from Washington, D.C. No. additional trial
dates are available for the foreseeable future.
reasons set forth, Defendants' Motion is DENIED.
HEREBY ORDERED that
(1) Defendants' Motion is DENIED.
(2) Trial will proceed as scheduled on June 21, 22 and 25-29.
(3) On or before 5:00 pm June 19, 2018, Defendants must
notify the court and the parties whether Mr. Shepard will