Published on: Wednesday, January 10, 2018

In White v. United States, No. 17-270, the issued presented to the Supreme Court was: "Whether, under the Speedy Trial Act, time engaged in a plea negotiation that does not result in a finalized plea agreement is automatically excludable as 'other proceedings concerning the defendant' under 18 U.S.C. § 3161(h)(1), as four circuits hold; or whether such time is excludable only if the district court makes case-specific 'ends of justice' findings under 18 U.S.C. § 3161(h)(7), as four other circuits hold."  The Sixth Circuit held, consistent with the Fourth, Seventh, and Eighth Circuits, that time spent in plea negotiations that do not result in a finalized plea agreement is authomatically excludable as "other proceedings" under 18 U.S.C. § 3161(h)(1). In contrast, the Second, Fifth, Ninth, and Eleventh Circuits hold that plea negotiations that fail to yield a finalized agreement are not authomatically excludable as"other proceedings concerning the defendant" under § 3161(h)(1). 

In its brief in opposition, the Government stated that the Sixth Circuit's rule "cannot be squared" with Bloate v. United States, 559 U.S. 196 (2010). The Government then attempted to minimize the circuit split. Finally, the Government assured the Supreme Court that the Department of Justice had adopted an official policy rejecting authomatic exclusion of time spent in unsuccessful plea negotiations; specifically, the Department issued "guidance to federal prosecutors instructing that they should not rely on the automatic exclusion of delay attributable to plea negotiations, and instead should seek ends-of-justice continuances under subsection (h)(7), as appropriate, when needed to meet the time limits of the Speedy Trial Act."

On January 8, 2018, the Supreme Court granted cert, vacated judgment, and remanded the case for further consideration in light of the Solicitor General's confession of error. SCOTUSblog has the case filings, including the Solicitor General's confession of error: The Training Division previously highlighted this case and the circuit split in a previous blog: