Despite confessed error defendant not entitled to relief.

Jimmie White moved to dismiss the indictment against him due to a speedy trial violation. The district court denied the motion, relying on a joint stipulation to exclude a two-week period of time that the parties were involved in plea negotiations and 18 U.S.C. § 3161(h)(7).

White appealed, arguing that the lower court did not make the requisite findings for the time to be excluded under 18 U.S.C. § 3161(h)(7). The government argued that the court did make the necessary findings, and, for the first time, that the two weeks spent in plea negotiations was automatically excluded from the speedy trial clock under 18 U.S.C. § 3161(h)(1). The Sixth Circuit panel, relying on prior circuit precedent, agreed.

White filed a writ of certiorari, arguing that the Sixth Circuit’s decision – that time during plea negotiations was automatically excluded under § 3161(h)(1) – was inconsistent with Bloate v. United States, 559 U.S. 196 (2010). “The government then changed horses in midstream, conceding – also for the first time before the Supreme Court – that [Sixth Circuit] precedent was incorrect and inconsistent with Bloate. The Supreme Court granted certiorari, vacated the judgment, and remanded for consideration “in light of the confession of error by the Solicitor General.”

On remand, the government changed horses again. The government agreed the time for plea negotiations is not automatically excluded under § 3161(h)(1) but now argues that White is not entitled to relief because he either waived or forfeited the argument, or, alternatively, the time was properly excluded under § 3161(h)(7).

In the fractured opinion issued on April 10th, there is some common ground. The panel agrees that Bloate v. United States, 559 U.S. 196 (2010), is intervening Supreme Court law that abrogates this Circuit’s precedent. In light of Bloate, the time spent during plea negotiations is not automatically excluded under § 3161(h)(1).

Judge Griffin would agree with the government that White forfeited the argument that Bloate prevented a finding of automatic exclusion under § 3161(h)(1). Both Judge Guy and Clay, writing separate opinions, disagree, going as far as saying “it is the government that forfeited its § 3161(h)(1) argument by failing to make it before the district court.” While this appears to be an interesting tête-à-têtes, it does not change the disposition of the appeal.

The majority (Judges Guy and Griffin) hold that White’s two week period was properly excluded under § 3161(h)(7). Judge Clay dissents, concluding that the lower court did not make the requisite findings to justify excluding the time based on the “ends of justice.”