Wednesday, January 10th, 2018

Supreme Court GVR (and Government Confession of Error) in Speedy Trial Act Case

Sentencing Resource Counsel Ada (“Sissy”) Phleger has the details, including as to the practical relevance of the case:

On Monday, the Supreme Court granted-vacated-and-remanded a case involving the Speedy Trial Act, White v. United States (17-270), in light of the Solicitor General’s confession of error. While the Government’s confession blocked merits review in Mr. White’s particular case, its arguments can be useful to others who encounter the issue (particularly in the Fourth, Sixth, Seventh, and Eighth Circuits).

The Sixth Circuit had rejected Petitioner Jimmie White’s Speedy Trial Act claim which turned on how to treat the time spent in ultimately unsuccessful plea negotiations. Mr. White sought cert, presenting the following question:

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.

In order to dodge cert (and a Supreme Court holding directly on the issue), the Government’s Brief in Opposition essentially threw under the bus the four circuits with automatic-exclusion rules like the Sixth Circuit had applied below. First, it candidly acknowledged that the rule (applied in the Fourth, Sixth, Seventh, and Eight Circuits) “cannot be squared” with Supreme Court precedent. Second, it worked to erode the appearance of a circuit split with a dogged circuit-by-circuit review of recent precedent in each of the automatic-exclusion circuits. With citations to published and unpublished cases, as well as the briefs filed in some of those cases, the Government questioned whether the automatic exclusion rule even remained good law within the circuits that had adopted it.

Even more importantly, the Solicitor General asserted to the Supreme Court that the Department of Justice had adopted an official policy rejecting automatic exclusion of time spent in unsuccessful plea negotiations:

The Department has accordingly 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.

While Mr. White’s response to this line of argument was justifiably skeptical, the fact that the Solicitor General has now assured the Supreme Court of the existence and force of the policy can be a powerful tool for any who encounter resistance on this issue in the future.

The SCOTUSblog case page has the filings:

Jeremy Marwell of Vinson & Elkins was counsel of record for Mr. White.

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