Michelle Nussbaum | Negotiate and Chill: How (and Whether) The Time for Plea Negotiations Can Be Excluded Under the Speedy Trial Act

BACKGROUND

The Speedy Trial Act requires that any information or indictment charging a defendant with an offense must be filed within thirty days from an individual’s arrest or summons in connection with the crime. 18 U.S.§ 3161 (b).

This means that the government has thirty days from the time someone is arrested or summoned to charge that person with a crime.

However, certain periods of time—or delays—can be excluded from the Speedy Trial thirty days. For example, under 18 U.S. § 3161(h)(1), delays “resulting from other proceedings concerning the defendant” can be excluded. The statute gives a non-exhaustive list of eight delays that would count as “resulting from other proceedings”:

(A) determining “mental competency or physical capacity”

(B) trial related “to other charges against the defendant”

(C) interlocutory appeals

(D) pretrial motions

(E) the transfer of the case or removal of a defendant

(F) transportation of a defendant if not unreasonable

(G) a court consideration of a proposed plea agreement

(H) proceedings “under advisement by the court”

Delays “resulting from other proceedings concerning the defendant” are automatically excludable from the Speedy Trial thirty days.

But a delay can still be excluded under other provisions in § 3161, such as (hint) 18 U.S. § 3161(h)(7), under which a delay resulting from a continuance granted to serve “the ends of justice” can be excluded. To be excluded, the reasons the delay serves “the ends of justice” must be set in the record.

THE SPLIT

As you might imagine, the real fights happen in the “including, but not limited to” space created by 18 U.S. § 3161(h)(1). For example, circuits cannot come to an agreement on whether plea negotiations are automatically excludable as “resulting from other proceedings concerning the defendant.”

The Second, Fifth, Ninth, and Eleventh Circuits have held that delays resulting from plea negotiations are only excludable under § 3161(h)(7)—where the judge makes findings on the record that the delay serves “the ends of justice.”

These Circuits determined that automatic exclusion only works for delays related to official judicial proceedings because those enumerated examples in 18 U.S. § 3161(h)(1) all relate to official judicial proceedings. The Eleventh Circuit in United States v. Mathurin (2012) stated that:

“'[P]lea negotiations’ are informal discussions between the parties and are directly controlled by the parties, not the court.” (quoting United States v. Lucky (2d Cir. 2009)).

Thus, the court held, plea negotiations are only excludable if the judge makes findings on the record that the delay serves “the ends of justice.”

On the other hand, the Fourth, Seventh, Eighth, and Sixth Circuits have held that delays resulting from plea negotiations are automatically excluded as “resulting from other proceedings concerning the defendant.” The Sixth Circuit, in United States v. White (2017) held that:

“Although the plea-bargaining process is not expressly specified in § 3161(h)(1), the listed proceedings ‘are only examples of delay ‘resulting from other proceedings concerning the defendant’ and are not intended to be exclusive.”

TAKEAWAYS

This split is ripe for Supreme Court review and a cert petition is pending.

It is important for the split to be resolved because defendants should be treated the same across jurisdictions. Also, what good is the Speedy Trial Act if defendants are unsure when they will be charged or how the Speedy Trial Act applies to their situation?

Although a look into statutory construction could resolve this split, interesting policy perspectives are at play regarding plea bargaining incentives—how would automatic exclusion of plea negotiations influence the parties to come to an agreement, if at all?

Whether plea agreements are automatically excludable or not, though, it is certainly better that everyone know for sure.