United States v. Jimmie White

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0070p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 16-1009
v. │
│
│
JIMMIE EUGENE WHITE, II, │
Defendant-Appellant. │
┘

On Remand from the Supreme Court of the United States.
United States District Court for the Eastern District of Michigan at Detroit.
No. 2:13-cr-20423—David M. Lawson, District Judge.

Reargued: October 18, 2018

Decided and Filed: April 10, 2019

Before: GUY, CLAY, and GRIFFIN, Circuit Judges.
_________________

COUNSEL

REARGUED: Christian D. Sheehan, VINSON & ELKINS LLP, Washington, D.C., for
Appellant. Andrew Goetz, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for
Appellee. ON SUPPLEMENTAL BRIEF: Christian D. Sheehan, Jeremy C. Marwell,
VINSON & ELKINS LLP, Washington, D.C., Kenneth P. Tableman, KENNETH P.
TABLEMAN, P.C., Grand Rapids, Michigan, for Appellant. Andrew Goetz, UNITED STATES
ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.

GRIFFIN, J. delivered the opinion of the court except with regard to the issue discussed
in Section III.B, and delivered a separate opinion with regard to the issue discussed in Section
III.B. GUY, J. (pp. 13–14), delivered a separate opinion concurring in the majority opinion and
in the judgment. CLAY, J. (pp. 15–23), delivered a separate opinion concurring in the majority
opinion in part and dissenting in part.
 No. 16-1009 United States v. White Page 2

_________________

OPINION
_________________

GRIFFIN, Circuit Judge.

Following our circuit’s binding precedent, we previously held in this case that
preindictment plea negotiations are “period[s] of delay resulting from other proceedings
concerning the defendant” that are automatically excludable under 18 U.S.C. § 3161(h)(1) of the
Speedy Trial Act. United States v. White, 679 F. App’x 426, 431 (6th Cir. 2017) (citing United
States v. Dunbar, 357 F.3d 582, 593 (6th Cir. 2004), vacated and remanded on other grounds,
543 U.S. 1099 (2005); United States v. Bowers, 834 F.2d 607, 609–10 (6th Cir. 1987) (per
curiam)). Defendant challenged this precedent for the first time in his petition for a writ of
certiorari as inconsistent with the Supreme Court’s intervening decision in Bloate v. United
States, 559 U.S. 196 (2010). Petition for Writ of Certiorari at 22–23, White v. United States,
138 S. Ct. 641 (2018) (No. 17-270). The government then changed horses in midstream,
conceding—also for the first time before the Supreme Court—that our circuit precedent was
incorrect and inconsistent with Bloate, and that the roughly two-week continuance to engage in
preindictment plea negotiations here did not qualify for automatic exclusion under § 3161(h)(1).
Response to Petition for Writ of Certiorari at 8–11, White v. United States, 138 S. Ct. 641 (2018)
(No. 17-270). The Supreme Court granted certiorari, vacated our judgment, and remanded the
case back to us “for further consideration in light of the confession of error by the Solicitor
General.” White v. United States, 138 S. Ct. 641, 641 (2018).

On remand, we now hold that Bloate abrogated Dunbar and Bowers. Nevertheless, we
deny defendant relief for two independent reasons. First, he cannot overcome plain-error review
of his Bloate argument. Second, and alternatively, the time for preindictment plea negotiations
was properly excluded as an ends-of-justice continuance under § 3161(h)(7) of the Speedy Trial
Act. Therefore, we again affirm the judgment of the district court.
 No. 16-1009 United States v. White Page 3

I.

Our prior opinion sets forth the facts pertinent to this remand:

On April 29, 2013, the government filed a complaint against White charging him
with drug distribution and firearm crimes related to the May 14, 2010, search and
seizure. White was arrested on those charges, and an order of temporary
detention was entered, on May 2, 2013. He made his initial appearance the next
day and was released on bond.
After his arrest, the parties engaged in preindictment plea negotiations. To that
end, they filed a stipulation with the district court on May 17, 2013, agreeing to
adjourn White’s preliminary hearing and exclude the time between May 23, 2013,
and June 7, 2013, from White’s Speedy Trial Act clock. Plea negotiations were
not successful, and a grand jury indicted White on June 4, 2013.

White, 679 F. App’x at 429. Including those days expressly excluded by the court, thirty-three
days passed between White’s arrest and indictment.

While he filed a bevy of motions before the district court, pertinent to our inquiry is only
White’s pretrial motion to dismiss the indictment because the government violated his speedy
trial rights. Defendant’s motion simply announced that the government failed to indict him
within thirty days of his arrest in violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq., but
substantively argued only his rights under the Speedy Trial Clause of the Sixth Amendment to
the Constitution, U.S. CONST. amend. VI. The district court held a hearing on the motion to
dismiss, denied it, a jury convicted White of multiple crimes, and the district court sentenced him
to 84 months in prison. We affirmed his conviction and sentence, rejecting his claim the district
court erred in denying his motion to dismiss the indictment for violations of the Speedy Trial Act
and the Sixth Amendment’s Speedy Trial Clause. See White, 679 F. App’x at 430–33.
Following remand from the Supreme Court, we give a fresh look to this issue.

II.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy . . . trial.” U.S. CONST. amend. VI. The Speedy Trial Act strengthens
this constitutional mandate by establishing time limits for completing the various stages of a
federal criminal prosecution. 18 U.S.C. §§ 3161–3174. Among these limits is an obligation that
 No. 16-1009 United States v. White Page 4

the government file an indictment within thirty days of arresting a defendant, excepting the time
spent on certain events that can be automatically excluded from that calculation and for other
events if sufficient reasons are given by the district court. 18 U.S.C. § 3161(b), (h). We
typically review de novo the district court’s interpretation of the Speedy Trial Act and its factual
findings for clear error. United States v. Anderson, 695 F.3d 390, 396 (6th Cir. 2012). And
“[w]e review the district court’s decision to grant an ends-of-justice continuance under an abuse-
of-discretion standard.” United States v. Williams, 753 F.3d 626, 635 (6th Cir. 2014).

The issue on remand is whether the fourteen days spent on preindictment plea
negotiations are excludable under that Act. White argues that our precedent holding that
preindictment plea negotiations are automatically excludable under § 3161(h)(1) no longer
passes muster after the Supreme Court’s Bloate decision. The government counters that this
court should affirm the district court because (1) White forfeited the argument that Bloate
precludes automatic exclusion of preindictment plea negotiations and cannot show plain error,
and (2) even if preindictment plea negotiations are not automatically excludable under
§ 3161(h)(1), that time was excludable as an ends-of-justice continuance pursuant to
§ 3161(h)(7). We address these arguments in turn.

III.

A.

We first hold that Bloate abrogated our prior decisions concluding that preindictment plea
negotiations are automatically excludable under the Act.

Section 3161(h)(1) provides for the automatic exclusion of “[a]ny period of delay
resulting from other proceedings concerning the defendant, including but not limited to” eight
enumerated subcategories. One of those categories expressly excludes the time “resulting from
consideration by the court of a proposed plea agreement to be entered into by the defendant and
the attorney for the Government.” § 3161(h)(1)(G). Based primarily on that subparagraph and
the “including but not limited to” language, we have long held that time spent on preindictment
plea negotiations between the parties is automatically excludable. Dunbar, 357 F.3d at 593;
Bowers, 834 F.2d at 609–10. And yet, in Bloate the Supreme Court held that the time a court
 No. 16-1009 United States v. White Page 5

grants to a party to prepare pretrial motions was not automatically excludable under
§ 3161(h)(1), notwithstanding § 3161(h)(1)(D)’s express exclusion of the time attributable to
“delay resulting from any pretrial motion, from the filing of the motion through the conclusion of
the hearing on, or other prompt disposition of, such motion.” 559 U.S. at 203–07. The Court
held that “because a specific provision . . . controls one of more general application,” id. at 207
(cleaned up), Congress’s express language in subparagraph (h)(1)(D) communicates the decision
to make automatically excludable the time for pretrial motions “only from the time a motion is
filed through the hearing or disposition point specified in the subparagraph, and that other
periods of pretrial motion-related delay are excludable only when accompanied by district court
findings,” id. at 206.

Given the above reasoning, the Solicitor General’s concession of error in our precedent,
and the Supreme Court’s order vacating our prior decision and remanding for reconsideration in
light of that concession of error, we take this opportunity to revisit our prior precedent. Although
it is generally true that one panel cannot overrule the binding precedent of a prior panel, United
States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017), that rule yields when the prior panel’s
reasoning has been undercut or abrogated by a decision of the Supreme Court. See Ne. Ohio
Coal. for the Homeless v. Husted, 831 F.3d 686, 720–21 (6th Cir. 2016). And, as we have held,
such Supreme Court authority need not be exactly on point, so long as the legal reasoning is
directly applicable to the issue at hand. Id. at 721; see also Barr v. Lafon, 538 F.3d 554, 571 (6th
Cir. 2008).

Just as the Supreme Court held that the time a court grants to a party to prepare pretrial
motions is not automatically excludable, the same is true for preindictment plea negotiations.
The parties now agree on this point. Subparagraph (h)(1)(G) expressly excludes the time
attributable to “delay resulting from consideration by the court of a proposed plea agreement to
be entered into by the defendant and the attorney for the Government.” § 3161(h)(1)(G)
(emphasis added). This specific provision caps the time to be excluded as beginning at the
moment the proposed plea is given to the court for its consideration. Plea negotiations, which
necessarily occur before a proposed plea agreement comes to fruition, are therefore outside the
limited universe contemplated by this subparagraph and may not be automatically excluded. See
 No. 16-1009 United States v. White Page 6

United States v. Mathurin, 690 F.3d 1236, 1241 (11th Cir. 2012) (“According to the Supreme
Court, when the category of delay at issue is ‘governed by’ one of § 3161(h)(1)’s eight
subparagraphs, a court must look only to that subparagraph to see if the delay is automatically
excludable. In other words, the ‘including but not limited to’ clause of § 3161(h)(1) does not
modify the contents of the enumerated subcategories themselves.” (citations omitted)). Thus,
applying Bloate’s reasoning to this analogous subparagraph, we now hold that (1) Bloate
abrogated Dunbar and Bowers, and (2) the time spent on preindictment plea negotiations is not
automatically excludable under § 3161(h)(1) of the Speedy Trial Act.

B.

This conclusion, however, does not end our consideration § 3161(h)(1)’s automatic
exclusion in this appeal. The government, though accepting that Bloate abrogated our precedent,
now argues that White has at a minimum forfeited the issue by not raising it before the district
court.1 I agree.

Before the district court, White specifically challenged the excludability of the fifteen-
day delay for plea negotiations, and the validity of the stipulation. However, he now presents a
new reason why the district court erroneously concluded that the plea-negotiation time was
excludable, arguing for the first time on appeal that Bloate’s reasoning applied to remove
preindictment plea negotiations from the automatic excludability provisions of § 3161(h)(1).
This is insufficient to preserve the issue for de novo review on appeal. See United States v.
Huntington Nat. Bank, 574 F.3d 329, 332 (6th Cir. 2009) (“To preserve the argument, then, the
litigant not only must identify the issue but also must provide some minimal level of
argumentation in support of it.”); United States v. Seals, 450 F. App’x 769, 771 (10th Cir. 2011)
(Gorsuch, J.) (declining to review the defendant’s new Speedy Trial Act argument because “not

1
The government also argues waiver, which we need not address given our conclusion that White forfeited
this issue. But even if we were so inclined to address the argument, it is unlikely that we could hold this issue
completely waived in this context, given the Supreme Court’s explicit direction that we “further consider[]” this
issue “in light of the confession of error by the Solicitor General.” White, 138 S. Ct. at 641; see Clark v. Chrysler
Corp., 436 F.3d 594, 600 (6th Cir. 2006) (“[E]ven though Chrysler initially waived its constitutional claim by failing
to raise it in the district court, our earlier decision and the Supreme Court’s GVR order indicates that the issue has
been preserved, and should be considered further on remand”); Lawrence v. Chater, 516 U.S. 163, 168 (1996)
(“GVR orders are premised on matters that [the Supreme Court] . . . believe[s] the court below did not fully
consider, and . . . require only further consideration . . . .” (emphasis added)).
 No. 16-1009 United States v. White Page 7

only must the defendant seek dismissal prior to trial, but he must do so for the reasons he seeks
to press on appeal”); see also United States v. Loughrin, 710 F.3d 1111, 1121 (10th Cir. 2013)
(citing Seals as “persuasive” and declining to consider the defendant’s challenge on appeal to an
order of continuance he did not challenge in the district court). And generally, an appellant’s
failure to raise an argument in his appellate brief forfeits that issue on appeal. Radvansky v. City
of Olmstead Falls, 395 F.3d 291, 310–11 (6th Cir. 2005).

Although the Supreme Court’s remand order requires this court to “further consider[]”
the Speedy Trial Act issue, it does not similarly require us to engage in de novo review or to
grant White relief. Cf. Bloate, 559 U.S. at 216 (Ginsburg, J., concurring) (“[N]othing in the
[Supreme Court’s] opinion bars the [circuit court] from considering, on remand, the
Government’s argument that the indictment, and convictions under it, remain effective”). As
White himself acknowledges, forfeiture of a specific Speedy Trial Act claim of error can result in
plain-error review, see, e.g., United States v. Montgomery, 395 F. App’x 177, 181 n.4, 184 n.7
(6th Cir. 2010), and we see no reason why the Supreme Court’s remand order would require
otherwise. Thus, we are limited to plain-error consideration of the district court’s determination
that the preindictment plea-negotiation period was automatically excludable under § 3161(h)(1).
See United States v. Olano, 507 U.S. 725, 731 (1993) (“Federal Rule of Criminal Procedure
52(b), which governs on appeal from criminal proceedings, provides a court of appeals a limited
power to correct errors that were forfeited because not timely raised in district court.”).

Plain error is, as it should be, a difficult hurdle to clear. The burden is on White “to show
(1) error that (2) was plain, (3) affected [his] substantial rights, and (4) seriously affected the
fairness, integrity, or public reputation of the judicial proceedings.” United States v. Ushery,
785 F.3d 210, 218 (6th Cir. 2015); see also Fed. R. Crim. P. 52(b). “An error is ‘plain’ when, at
a minimum, it ‘is clear under current law.’” United States v. Al-Maliki, 787 F.3d 784, 794 (6th
Cir. 2015) (quoting Olano, 507 U.S. at 734).

We have noted that “[a] ‘circuit split precludes a finding of plain error,’ for the split is
good evidence that the issue is ‘subject to reasonable dispute.’” Id. (quoting United States v.
Williams, 53 F.3d 769, 772 (6th Cir. 1995); Puckett v. United States, 556 U.S. 129, 135 (2009)).
And we have also explained that “[a] lack of binding case law that answers the question
 No. 16-1009 United States v. White Page 8

presented will also preclude our finding of plain error.” Id. Here, the district court could not
have plainly erred because we are in a realm beyond either a circuit split or lack of binding
caselaw—at the time of the district court’s decision, the binding precedent of this circuit held
that the time for preindictment plea negotiations was automatically excludable. See Dunbar,
357 F.3d at 593; Bowers, 834 F.2d at 609–10.

Although we now overrule those decisions in light of their abrogation by Bloate, the
analysis supporting that conclusion shows that we had to extend Bloate’s reasoning to an
analogous, but different, section of the Speedy Trial Act. See, supra, Section III.A. Our
decision today shows that it took no great inferential leap to apply Bloate in this instance, but it
still required both an extension of Bloate’s reasoning and the overruling of two of our published
decisions. We cannot fault a district court for following our binding caselaw, as it was required
to do. Cf. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a
precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the [lower courts] should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own decisions.”). Thus, White cannot
show that the district court committed plain error in denying his motion to dismiss on Speedy
Trial Act grounds.

IV.

Finally, we turn to the government’s alternate argument—that the district court’s order
granting the parties’ stipulation to exclude the preindictment-plea-negotiation period from
Speedy Trial Act calculations satisfied the requirements for an ends-of-justice continuance under
the Act. We agree and hold this to be adequate alternative grounds for affirmance.

Regardless of whether a period of time is automatically excludable, the Speedy Trial Act
allows for a continuance whenever the judge finds “that the ends of justice served by taking such
action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C.
§ 3161(h)(7)(A). This is a common ground for excluding time and the Supreme Court has noted
that ends-of-justice continuances furnish “[m]uch of the Act’s flexibility.” Zedner v. United
States, 547 U.S. 489, 498 (2006).
 No. 16-1009 United States v. White Page 9

To exclude time under this exception, the court must consider certain factors, such as
whether the failure to grant the continuance would “result in a miscarriage of justice,”
§ 3161(h)(7)(B)(i); whether due to the nature of the case (or other factors), the case is too
complex to reasonably expect adequate preparation within the Act’s time limits,
§ 3161(h)(7)(B)(ii); or whether a refusal to continue the case would deny the defendant
“reasonable time to obtain counsel,” or would unreasonably deny either party time for “effective
preparation,” § 3161(h)(7)(B)(iv). Notably, the list of enumerated factors is not exhaustive,
§ 3161(h)(7)(B) (“The factors, among others, which a judge shall consider . . . .” (emphasis
added)), but preindictment plea negotiations are not expressly included. See § 3161(h)(7)(B)(i)–
(iv).

The Supreme Court has held that other types of delay that are not excludable under
subsection (h)(1) are excludable under the more flexible framework of subsection (h)(7). See
Bloate, 559 U.S. at 214 (holding that the time spent to prepare pretrial motions, while not
excludable under subsection (h)(1), is excludable under subsection (h)(7)). And a number of our
sister circuits have concluded that time spent negotiating preindictment plea agreements can be
excluded under subsection (h)(7)’s ends-of-justice exclusion. See Mathurin, 690 F.3d at 1241–
42; United States v. Fields, 39 F.3d 439, 445 (3d Cir. 1994) (Alito, J.); United States v. Williams,
12 F.3d 452, 460 (5th Cir. 1994), abrogated on other grounds by United States v. Wells,
519 U.S. 482, 492 (1997). We agree, and hold that the time spent on preindictment plea
negotiations may be excludable under subsection (h)(7).2 A conclusion to the contrary would
pervert the Speedy Trial Act and ignore the central importance that the plea bargaining process
has in our modern system of criminal justice—“[i]t is not some adjunct to the criminal justice
system; it is the criminal justice system.” Missouri v. Frye, 566 U.S. 134, 144 (2012) (internal
quotation marks omitted); see also Lafler v. Cooper, 566 U.S. 156, 170 (2012) (“[C]riminal
justice today is for the most part a system of pleas, not a system of trials.”).

2
This conclusion does not suffer from the same defect that our prior caselaw on automatic exclusions did—
there is no subpart of § 3161(h)(7) that speaks narrowly to plea agreements or plea negotiations, so we are not
foreclosed from permitting plea negotiations as a reasonable basis for an ends-of-justice continuance. Cf. Bloate,
559 U.S. at 208–09 (holding that though “the list of categories [in § 3161(h)(1)] is illustrative rather than exhaustive
in no way undermines our conclusion that a delay that falls within the category of delay addressed by [a]
subparagraph . . . is governed by the limits in that subparagraph”). Because none of the subparagraphs of
§ 3161(h)(7) address pleas at all, we are not similarly constrained here.
 No. 16-1009 United States v. White Page 10

Therefore, because the time spent on pretrial plea negotiations may be excludable under
subsection (h)(7), we must determine whether the magistrate judge’s order provided sufficient
explanation for the continuance, as required by the Act. Subsection 3161(h)(7) requires a district
court to “show its work,” before granting an ends-of-justice continuance:

No such period of delay resulting from a continuance granted by the court in
accordance with this paragraph shall be excludable under this subsection unless
the court sets forth, in the record of the case, either orally or in writing, its reasons
for finding that the ends of justice served by the granting of such continuance
outweigh the best interests of the public and the defendant in a speedy trial.

Id. “[T]he Act requires express findings” when granting an ends-of-justice continuance, and
“without on-the-record findings, there can be no exclusion” pursuant to § 3161(h)(7). See
Zedner, 547 U.S. at 506–07.3 The public interest in a speedy trial is also protected by the Act, so
a defendant’s agreement to waive its protections cannot, by itself, justify an ends-of-justice
continuance. See id. at 500–01 (finding that a defendant cannot prospectively waive or “opt out
of the Act” meant to balance the defendant’s and the government’s interests against those of the
public); see also Bloate, 559 U.S. at 211–12 (noting that a defendant may not opt out of the Act
even if he believes it would be in his interest because the Act also “vindicate[s] the public
interest in the swift administration of justice”).

Given its unique structure and appearance, it is important to discuss exactly what the
combined stipulation and order granting the continuance said in this case. The first two pages of
the court’s filed order was nothing more than the parties’ stipulation. There, the parties provided
that “the period from May 23, 2013, to June 7, 2013, should be excluded from computing the
time within which an information or indictment must be filed because the parties are engaged in
plea negotiations, 18 U.S.C. § 3161(h)(1), and because the ends of justice served by such
continuance outweigh the interests of the public and the defendant in a speedy trial. See
18 U.S.C. § 3161(h)(7).” The third page of the court’s order began by noting that the “matter
[came] before the court on the stipulation of the parties” and provided, simply, that “the period
from May 23, 2013, to the new date of the preliminary hearing, June 7, 2013, should be excluded

3
The Zedner Court, interpreting an older version of the Act, refers to the pertinent section as § 3161(h)(8).
In a 2008 amendment, this subsection was redesignated as (h)(7). Pub. L. No. 110–406 § 13(3) (2008). The text
and substance of the statutory subsection did not change.
 No. 16-1009 United States v. White Page 11

in calculating the time within which the defendant shall be indicted under the Speedy Trial Act.
18 U.S.C. § 3161.”

This order sufficiently supports an ends-of-justice exclusion under § 3161(h)(7). First,
the order clearly incorporates the parties’ two-page stipulation, both by attachment and reference.
In the past we’ve upheld a continuance when the reasons for it are clear from the context or
record. United States v. Richardson, 681 F.3d 736, 741 (6th Cir. 2012) (“[G]iven the context,
the record clearly establishes that a continuance serves the ends of justice.”). That the magistrate
attached the parties’ stipulation to its order only bolsters the conclusion that the parties’ proposed
justifications for the continuance found their way into the magistrate’s determination. Thus, we
agree with the district court and the government that the magistrate adopted the parties’
stipulation as part of its own reasoning in support of the roughly two-week continuance.

Second, the contents of the order are sufficient to support the continuance. We have
previously affirmed a district court’s ends-of-justice continuance when it simply held that “the
ends of justice served outweigh the best interest of the public and the defendant in a speedy
trial.” Anderson, 695 F.3d at 397. Given the context surrounding the issue in Anderson—the
judge was considering a motion to suppress for some, but not all, of the period for which the
continuance was granted—this court held that the defendant’s challenge to the district court’s
ends-of-justice continuance was meritless. Id. at 397–98. In a similar vein, here, the
magistrate’s order and the surrounding context support the continuance. As noted above, time
for preindictment plea negotiations may be excluded under subsection (h)(7) as a valid ends-of-
justice exception to the Act’s strict deadlines. Given the relatively short continuance
requested—only approximately two weeks’ time—the magistrate did not err in concluding that
the parties’ efforts to come to a mutually agreeable plea agreement “outweigh[ed] the best
interest of the public and the defendant in a speedy trial.” § 3161(h)(7)(A). And the fact that the
magistrate’s order did not explicitly say “ends of justice” poses no alternate barrier to this
conclusion. “An ends-of-justice continuance can be found even when a delay is not designated
as such by the court.” United States v. Stone, 461 F. App’x 461, 466 (6th Cir. 2012) (citing
United States v. Spring, 80 F.3d 1450, 1457 (10th Cir. 1996)). The Act does not require such
“magic words.” United States v. Breen, 243 F.3d 591, 597 (2d Cir. 2001).
 No. 16-1009 United States v. White Page 12

Finally, despite White’s arguments to the contrary, this case is distinguishable from
Zedner because it does not present the sort of wide-ranging and open-ended error that the Zedner
Court sought to remedy. There, the Court was faced with an open-ended stipulation, which
prevented the defendant from raising any Speedy Trial Act issues “for all time.” Zedner,
547 U.S. at 494. This universal Speedy Trial Act waiver ultimately led to over seven years
passing from the defendant’s indictment to his trial. Id. at 496. Unlike the “waiver for all time”
and for all reasons in Zedner, id. at 493–94, here the magistrate accepted a mere two-week
exclusion of time for the express purpose of preindictment plea negotiations.

Sure, an order more fully explaining the magistrate’s reasoning would have been well
taken by this court, but we cannot forget that the Act does not require a novella of explanation.
See Anderson, 695 F.3d at 397. The magistrate’s succinct and plain statement here, when
combined with the parties’ attached stipulation, granted a short and definite continuance
(approximately two weeks), for a permissible reason (preindictment plea negotiations), after
expressly considering the three-pronged interests relevant to the Act (the interests of defendant,
the government, and the public). In short, we cannot, under these facts and given the
surrounding context, find that the magistrate judge abused his discretion in granting an ends-of-
justice continuance. Williams, 753 F.3d at 635.

V.

We affirm the judgment of the district court.
 No. 16-1009 United States v. White Page 13

_______________________________________________________

CONCURRING IN PART AND IN THE JUDGMENT
_______________________________________________________

RALPH B. GUY, JR., Circuit Judge. I concur in the judgment and concur with Judge
Griffin’s opinion, except as to part III.B. In my view, White did not forfeit his argument about
18 U.S.C. § 3161(h)(1) because I fail to see when he was required to raise the argument.

Consider the order of events. Fourteen days after White was arrested, his court-appointed
attorney signed the stipulation at issue in this case. The magistrate judge entered the order the
next day. A few weeks later, White filed a pro se motion to dismiss the indictment due to a
Speedy Trial Act violation and also moved for a new attorney. The court allowed White to hire a
new attorney, denied the pro se motion without prejudice, and invited the new attorney to file a
new motion. The new attorney did file a new motion under the Speedy Trial Act and the
government filed a response. White declined to file a reply. The court held a hearing and
ultimately denied the motion in a written order.

Then consider the content of the briefs. The pro se motion simply pointed out
§ 3161(b)’s 30-day deadline, while making no reference to the stipulation or the order finding
excludable delay. The subsequent attorney-drafted motion was more specific, but it observed
only that 33 calendar days elapsed and concluded that there was necessarily a violation of
§ 3161(b). It too failed to mention the stipulation and order. The government finally brought up
the order in its response brief, but with little elaboration. The government merely observed that
“the parties agreed, and the court ordered, that the period of delay from May 23, 2013, through
June 4, 2013 (in fact June 7, 2013) was excludable delay under the [Speedy Trial Act].” It did
not, however, identify how the Speedy Trial Act enabled this exclusion—whether through
§ 3161(h)(1), (h)(7), or some other means. In all, no brief mentioned automatic exclusion or
§ 3161(h)(1).

Automatic exclusion never came up at the hearing either. The government never
mentioned it and argument about the Speedy Trial Act focused exclusively on the validity of the
 No. 16-1009 United States v. White Page 14

stipulation. White’s new attorney recounted how the old attorney had signed the stipulation and
explained:

If that extension is effective to the Defendant, then that would be credited against
him; the issue would be moot, he would lose. His claim is that he did not agree to
that, had no knowledge of it, that that extension was taking place. . . . Our
argument is very simple: He didn’t agree to it.

Ultimately, the district court found that the stipulation was valid and that finding has never been
at issue on appeal.

White did not raise the automatic-exclusion issue, but it was not his issue to raise. White
did what the Speedy Trial Act requires: he provided proof of a violation (a list of the dates) and
moved for dismissal. See 18 U.S.C. § 3162(a)(1). The government was then required to prove,
by a preponderance of the evidence, that sufficient time was excluded. See United States v.
Jenkins, 92 F.3d 430, 438 (6th Cir. 1996). It did so by merely pointing to the magistrate judge’s
order. Notably, though, § 3161(h)(1)—when it does apply—does not require a judicial finding;
it is automatic. See Bloate v. United States, 559 U.S. 196, 203 (2010); Henderson v. United
States, 476 U.S. 321, 327, 332 (1986). If the government had argued that even without the order,
the time was automatically excluded under § 3161(h)(1), it would have behooved White to raise
a Bloate-based challenge in a reply brief—but the government did not raise that argument.
White therefore had no obligation to argue why the unmentioned provision did not apply to him.

Ultimately, the waiver of the § 3161(h)(1) argument—whether by White or the
government—is inconsequential. All now agree that under Bloate, § 3161(h)(1) does not apply
here, which leaves us with the matter actually considered and relied upon by the district court:
exclusion under § 3161(h)(7). I agree that under the circumstances the magistrate judge’s order,
which was explicitly premised on the parties’ stipulation, satisfied the requirement of an on-the-
record finding for an ends-of-justice continuance. I therefore concur in the judgment.
 No. 16-1009 United States v. White Page 15

_______________________________________________________

CONCURRING IN PART AND DISSENTING IN PART
_______________________________________________________

CLAY, Circuit Judge, concurring in part and dissenting in part. This case comes before
us pursuant to a grant, vacate, and remand order (“GVR”) from the Supreme Court. All that
remains at issue is whether the district court properly excluded a period of two weeks when
determining whether Defendant was indicted more than thirty days after his arrest, in violation of
the Speedy Trial Act, 18 U.S.C. § 3161(b). During that two-week period, Defendant was
engaged in plea negotiations with the government. The majority holds (1) that time spent in plea
negotiations is not automatically excludable under 18 U.S.C. § 3161(h)(1), and (2) that
Defendant nevertheless is not entitled to relief either because he forfeited that argument, or,
alternatively, because his time spent in plea negotiations was properly excluded under 18 U.S.C.
§ 3161(h)(7). I concur in the majority’s first holding, set out in Section III.A. However,
I respectfully dissent from the majority’s second holding because the majority’s reasoning is
inconsistent with Supreme Court and Sixth Circuit precedent.

I. Background

The relevant facts are straightforward. On May 14, 2010, federal law enforcement agents
executed a search warrant at Defendant’s home and found drugs and a firearm. See United
States v. White, 679 F. App’x 426, 428–30 (6th Cir. 2017). On April 29, 2013, the government
filed a criminal complaint against Defendant in connection with that search. Id. And on May 2,
2013, Defendant was arrested in connection with that complaint. Id.

After his arrest, Defendant engaged in plea negotiations with the government. Id. To
that end, on May 16, 2013, Defendant and the government filed a joint stipulation with the
district court, stating in part that:

[T]he period from May 23, 2013 to June 7, 2013, should be excluded from
computing the time within which an information or indictment must be filed
because the parties are engaged in plea negotiations, 18 U.S.C. § 3161(h)(1), and
because the ends of justice served by such continuance outweigh the interests of
the public and the defendant in a speedy trial. See 18 U.S.C. § 3161(h)(7).
 No. 16-1009 United States v. White Page 16

(RE 12, PageID # 30–31.) On May 17, 2013, a magistrate judge issued an order stating in part
that:

This matter coming before the court on the stipulation of the parties, it is
hereby . . . ORDERED that the period from May 23, 2013, to the new date of the
preliminary hearing, June 7, 2013 should be excluded in calculating the time
within which the defendant shall be indicted under the Speedy Trial Act.
18 U.S.C. § 3161.

(Id. at PageID # 32.) And on June 4, 2013, Defendant was indicted for various drug and firearm
offenses, of which he was later convicted. White, 679 F. App’x at 428–30.

The relevant procedural history is less straightforward, but no less significant. As his
case progressed, Defendant filed a motion to dismiss the indictment, alleging that the
government had indicted him more than thirty days after his arrest, in violation of the Speedy
Trial Act, 18 U.S.C. § 3161(b). In response, the government argued that Defendant had agreed
that the time Defendant spent in plea negotiations would be excluded, and that taking that
excluded time into account, Defendant was permissibly indicted twenty days after his arrest. The
district court agreed with the government and denied Defendant’s motion, reasoning that the time
Defendant spent in plea negotiations was excludable under 18 U.S.C. § 3161(h)(7) because
Defendant and the government “agreed that the time period should be [excluded].” (RE 42,
PageID # 143–44.)

Defendant appealed, arguing that neither the magistrate judge nor the district court had
made the statutorily mandated findings necessary to exclude the time Defendant spent in plea
negotiations under § 3161(h)(7). In response, the government argued both that the magistrate
judge and the district court had made the statutorily mandated findings, and, for the first time,
that Defendant’s time spent in plea negotiations was also automatically excludable under
18 U.S.C. § 3161(h)(1). In reply, Defendant addressed the government’s new argument,
countering that “section 3161(h)(1) only mentions the exclusion of time for the district court to
consider a plea agreement. It says nothing about plea negotiations. . . [and] it is consistent with
the purposes of the [Speedy Trial] Act to interpret the exclusion of delay due to ‘other
proceedings’ in section (h)(1) to apply only to other proceedings like those described in the
section.” (Initial Reply Brief for Appellant at 2–3) (emphasis added). We agreed with the
 No. 16-1009 United States v. White Page 17

government’s new argument and affirmed the denial of Defendant’s motion, reasoning that time
spent in plea negotiations is “automatically excludable under § 3161(h)(1)” because “[a]lthough
the plea bargaining process is not expressly specified in § 3161(h)(1)[’s] [subparagraphs], the
listed proceedings are only examples . . . and are not intended to be exclusive.” White, 679 F.
App’x at 430–31.

Defendant filed a petition for certiorari with the Supreme Court. In his petition,
Defendant maintained that time spent in plea negotiations is not automatically excludable under
§ 3161(h)(1), and cited the Supreme Court’s decision in Bloate v. United States, 559 U.S. 196
(2010). The government then abandoned the position it had taken before this Court on direct
appeal, and agreed with Defendant. Accordingly, the Supreme Court issued a GVR directing us
to further consider this case in light of the government’s confession of error. On remand,
Defendant continues to argue that time spent in plea negotiations is not automatically excludable
under § 3161(h)(1) pursuant to Bloate. The government continues to agree, but now argues that
Defendant is nevertheless not entitled to relief because he waived and forfeited that argument, or,
alternatively, because his time spent in plea negotiations was properly excluded under
§ 3161(h)(7).

II. 18 U.S.C. § 3161(h)(1)1

I concur in the majority’s holding that time spent in plea negotiations is not automatically
excludable under 18 U.S.C. § 3161(h)(1). The Supreme Court’s decision in Bloate abrogated
this Court’s contrary decisions in United States v. Dunbar, 357 F.3d 582 (6th Cir. 2004) and
United States v. Bowers, 834 F.2d 607 (6th Cir. 1987).

III. Forfeiture

Judge Griffin, writing for himself, holds that Defendant is not entitled to relief because he
forfeited his § 3161(h)(1) argument by failing to make it before the district court or in his initial

1
18 U.S.C. § 3161(h)(1) provides, in relevant part: “The following periods of delay shall be excluded in
computing the time within which an information or an indictment must be filed[:] . . . Any period of delay resulting
from other proceedings concerning the defendant, including but not limited to . . . delay resulting from consideration
by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the Government.”
 No. 16-1009 United States v. White Page 18

opening brief to this Court, and that as a result, we are limited to plain error review. For several
reasons, this holding is unpersuasive.

First, it is the government that forfeited its § 3161(h)(1) argument by failing to make it
before the district court. This Court has held that once a defendant makes a “prima facie”
showing of a violation—“a simple matter of producing a calendar” and showing that more than
the allowed amount of time has passed, United States v. Sherer, 770 F.3d 407, 411 (6th Cir.
2014)—“the government bears the burden of proving sufficient excludable time by a
preponderance of the evidence.” United States v. Sobh, 571 F.3d 600, 602 (6th Cir. 2009); see
also United States v. Gardner, 488 F.3d 700, 717 (6th Cir. 2007). Yet, faced with Defendant’s
showing that he was indicted more than thirty days after his arrest, the government never argued
that the time Defendant spent in plea negotiations was automatically excludable under
§ 3161(h)(1). And the United States, like all litigants, forfeits arguments not raised before the
district court. Cradler v. United States, 891 F.3d 659, 666 (6th Cir. 2018). I concur with Judge
Guy’s opinion on this point. See Con. Op. at 14 (“White did not raise the automatic-exclusion
issue, but it was not his issue to raise.”).

Second, and relatedly, even if the government did not bear the burden of proving
sufficient excludable time, because neither party argued that the time Defendant spent in plea
negotiations was automatically excludable under § 3161(h)(1), the district court did not address
or analyze § 3161(h)(1) in its denial of Defendant’s motion. Rather, the district court addressed
and analyzed only § 3161(h)(7).2 Accordingly, when the government made its § 3161(h)(1)

2
Though the district court’s written denial of Defendant’s motion cited neither § 3161(h)(1) nor
§ 3161(h)(7), the district court’s statements at the hearing on Defendant’s motion demonstrate that it denied
Defendant’s motion pursuant to § 3161(h)(7). The district court reasoned that the joint stipulation stated that “the
ends of justice served by the continuance outweigh the interest of the public and the Defendant in a speedy trial,
which [are] the magic words . . . that we’re familiar with.” (RE 88, PageID # 624.) The district court also reasoned
that “[t]he [magistrate judge’s] order was based in some measure on [the] stipulation, but [was] also based on the
independent finding of a judicial officer, as it must be under the Speedy Trial Act. . . . The magistrate judge made a
finding and I can rely on that. . . . So that’s my ruling on that.” (Id. at PageID # 631–33.) Such magic words and
independent findings are relevant only to § 3161(h)(7). Compare United States v. Brown, 819 F.3d 800, 822 (6th
Cir. 2016) (“[I]n order to grant an ends of justice continuance based on the considerations articulated under
[§ 3161(h)(7)], the district court was required to set forth on-the-record findings, orally or in writing, that the ends of
justice served by the continuance outweighed the interests of [the defendant] and society in a speedy trial.”) with
United States v. Robinson, 887 F.2d 651, 656 (6th Cir. 1989) (“The exclusion is automatic if it falls within one of
the [§ 3161(h)(1)] exceptions.”).
 No. 16-1009 United States v. White Page 19

argument on appeal, it was as an alternative basis for affirmance. And this Court has held that in
such situations, the appellant forfeits its argument in response only if it fails to make that
argument in its reply brief. See Innovation Ventures, LLC v. N.V.E., Inc., 694 F.3d 723, 729 (6th
Cir. 2012) (“[The appellant] would not have been on notice that it needed to address in its initial
brief an issue not even discussed by the district court. Consequently, there is no [forfeiture], and
we find that [the appellant] properly responded [in its reply brief] to the alternative basis for
affirmance raised on appeal . . . .”); see also Golden Living Center-Frankfort v. Sec’y of Health
& Human Servs., 656 F.3d 421, 42 (6th Cir. 2011). In his initial reply brief, Defendant properly
responded to the government’s argument, countering that “section 3161(h)(1) only mentions the
exclusion of time for the district court to consider a plea agreement. It says nothing about plea
negotiations. . . [and] it is consistent with the purposes of the [Speedy Trial] Act to interpret the
exclusion of delay due to ‘other proceedings’ in section (h)(1) to apply only to other proceedings
like those described in the section.” (Initial Reply Brief for Appellant at 2–3) (emphasis added).3

Third, even if Defendant did forfeit his § 3161(h)(1) argument, that forfeiture was cured
by subsequent proceedings in this Court and the Supreme Court. This Court’s decision in Clark
v. Chrysler Corp., 436 F.3d 594 (6th Cir. 2006) is instructive.4 In Clark, the defendant failed to

3
Accord Maj. Op. at 5 (“Subparagraph (h)(1)(G) expressly excludes the time attributable to ‘delay resulting
from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney
for the government.’ . . . Plea negotiations, which necessarily occur before a proposed plea agreement comes to
fruition, are therefore outside the limited universe contemplated by this subparagraph and may not be automatically
excluded.”).
4
Judge Griffin, writing for himself, acknowledges the persuasiveness of Clark, but erroneously limits its
discussion of Clark to its analysis of waiver. “The terms waiver and forfeiture—though often used interchangeably
by jurists and litigants—are not synonymous.” Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 17
n.1 (2017). “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right.” United States v. Olano, 57 U.S. 725, 733 (1993); see also Lucaj
v. Fed. Bureau of Investigation, 852 F.3d 541, 547 n.4 (6th Cir. 2017). Accordingly, a defendant waives an
argument by, for instance, withdrawing a motion or objection, see United States v. Collins, 683 F.3d 697, 701 (6th
Cir. 2012), stating that a proposition is not disputed, see United States v. Walker, 615 F.3d 728, 733 (6th Cir. 2010),
or stating that they are not pressing an argument. See United States v. Tasis, 696 F.3d 623, 625–26 (6th Cir. 2012).
In contrast, a defendant forfeits an argument by, for instance, failing to make it before the district court, see Pittman
v. Experian Information Sols, Inc., 901 F.3d 619, 630 n.6 (6th Cir. 2018), failing to make it in its opening appellate
brief, see Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 521–22 (6th Cir. 2014), or identifying it
without pressing it. See Jones Bros., Inc. v. Sec’y of Labor, 898 F.3d 669, 677 (6th Cir. 2018). Significantly, in
Clark, the defendant failed to raise the argument at issue in its post-trial motions before the district court. 436 F.3d
at 598. Thus, while this Court used the term “waiver,” it was more accurately referring to forfeiture, see Pittman,
901 F.3d at 630 n.6, and as a result, Clark is applicable to this forfeiture analysis.
 No. 16-1009 United States v. White Page 20

argue before the district court that the verdict against it was unconstitutionally excessive.
436 F.3d at 599. Accordingly, Chrysler forfeited that argument. Yet despite that forfeiture, this
Court addressed the issue on appeal and held that the verdict was not unconstitutionally
excessive. Id. Chrysler appealed, and the Supreme Court issued a GVR, instructing this Court to
reconsider the case in light of State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003).
Id. On remand, this Court held that its addressing the issue on direct appeal—despite the
forfeiture—preserved the issue for Supreme Court review, and that the Supreme Court’s GVR—
despite the forfeiture—preserved the issue for reconsideration. Id. at 599–600. “[E]ven though
[t]he defendant initially [forfeited] [its] challenge by failing to raise it in its post-trial motions
before the district court, subsequent proceedings in the Sixth Circuit and the Supreme Court
preserved the issue for review.” Id. at 598.

The same is true in this case. Defendant allegedly forfeited his § 3161(h)(1) argument by
not making it before the district court. Yet despite that alleged forfeiture, this Court addressed
the issue on appeal and held that that time spent in plea negotiations is “automatically excludable
under § 3161(h)(1)” because “[a]lthough the plea bargaining process is not expressly specified in
§ 3161(h)(1)[’s] [subparagraphs], the listed proceedings are only examples . . . and are not
intended to be exclusive.” White, 679 F. App’x at 430–31. Defendant appealed, and the
Supreme Court issued a GVR in light of the government’s confession of error. Thus, as in Clark,
subsequent proceedings before this Court and before the Supreme Court cured Defendant’s
forfeiture. See Stutson v. United States, 516 U.S. 193, 197 (1996) (“[A] GVR order promotes
fairness and respects the dignity of the Court of Appeals by enabling it to consider potentially
relevant decisions and arguments that were not previously before it.”).5

5
Judge Griffin’s holding on this issue eliminated any need for him to address waiver. However, because I
disagree with that holding, I address waiver as well. The government argues that Defendant waived his § 3161(h)(1)
argument pursuant to 18 U.S.C. § 3162(a), which provides that “[f]ailure of the defendant to move for dismissal
prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under
this section.” This argument is unpersuasive, as this Court has held that § 3162(a) is satisfied “so long as the
defendant brings to the court’s attention his belief that his [Speedy Trial Act] rights have been violated.” Brown,
819 F.3d at 823. In this case, Defendant filed a motion to dismiss the indictment, alleging that the government had
indicted him more than thirty days after his arrest, in violation of the Speedy Trial Act, 18 U.S.C. § 3161(b). Thus,
Defendant did not waive his § 3161(h)(1) argument.
 No. 16-1009 United States v. White Page 21

IV. 18 U.S.C. § 3161(h)(7)6

The majority holds that the magistrate judge and the district court made the statutorily
mandated findings necessary to exclude Defendant’s time spent in plea negotiations under
18 U.S.C. § 3161(h)(7). This holding is also unpersuasive.

By its terms, 18 U.S.C. § 3161(h)(7)(A) permits a court to exclude a period of time by
granting an ends-of-justice continuance only if “the judge granted such continuance on the basis
of his findings that the ends of justice served by taking such action outweigh the best interest of
the public and the defendant in a speedy trial.” The provision explains that “no such period of
delay resulting from a continuance granted by the court . . . shall be excludable under this
subsection unless the court sets forth in the record of the case, either orally or in writing, its
reasons for finding that the ends of justice served by the granting of such continuance outweigh
the best interests of the public and the defendant in a speedy trial.” Id. Section 3161(h)(7)(B)
then lists “[t]he factors, among others, which a judge shall consider” in determining whether to
grant an ends-of-justice continuance.

Thus, § 3161(h)(7) “is explicit.” Zedner v. United States, 547 U.S. 489, 507 (2006).
“[W]ithout the on-the-record-findings, there can be no exclusion.” Id. “[I]f a judge fails to make
the requisite findings regarding the need for the ends-of-justice continuance, the delay resulting
from the continuance must be counted, and if as a result the trial does not begin on time, the
indictment or information must be dismissed.” Id. at 508. In this way, § 3161(h)(7) “gives the
district court discretion—within limits and subject to specific procedures—to accommodate
limited delays for case-specific needs.” Id. at 499. As the Supreme Court has explained:

The exclusion of delay resulting from an ends-of-justice continuance is the most
open-ended type of exclusion recognized under the [Speedy Trial] Act and, in
allowing district courts to grant such continuances, Congress clearly meant to give
district judges a measure of flexibility in accommodating unusual, complex, and
difficult cases. But it is equally clear that Congress, knowing that the many sound

6
18 U.S.C. § 3161(h)(7) provides, in relevant part: “The following periods of delay shall be excluded in
computing the time within which an information or an indictment must be filed[:] . . . Any period of delay resulting
from a continuance granted by the judge . . . if the judge granted such continuance on the basis of his findings that
the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy
trial.”
 No. 16-1009 United States v. White Page 22

grounds for granting ends-of-justice continuances could not be rigidly structured,
saw a danger that such continuances could get out of hand and subvert the Act’s
detailed scheme. The strategy of [§ 3161(h)(7)], then, is to counteract substantive
openendedness with procedural strictness. The provision demands on-the-record
findings and specifies in some detail certain factors that a judge must consider in
making those findings.

Id. at 508–09.

“[T]he Sixth Circuit has placed great emphasis on the need for a district court to comply
with this statutory requirement.” Greenup v. United States, 401 F.3d 758, 764 n.3 (6th Cir.
2005); see, e.g., United States v. Jordan, 544 F.3d 656, 665 (6th Cir. 2008) (“We believe that in
order to assure that the district court adequately considers whether the ends-of-justice outweigh
the public’s and defendant’s interest in a speedy trial, the district court should also generally hold
an adversarial hearing in which both sides participate.”). “This Court will not countenance
maneuvers aimed at merely paying lip service to the Speedy Trial Act’s requirements.” Brown,
819 F.3d at 815.

In this case, the magistrate judge issued an order stating only that “[t]his matter coming
before the court on the stipulation of the parties, it is hereby . . . ORDERED that the period from
May 23, 2013, to the new date of the preliminary hearing, June 7, 2013 should be excluded in
calculating the time within which the defendant shall be indicted under the Speedy Trial Act.
18 U.S.C. § 3161.” (RE 12, Page ID # 32.) The order did not mention the ends of justice or the
interest of the defendant and the public in a speedy trial, let alone any reasons for finding that
one outweighed the other. Accordingly, the magistrate judge plainly did not comply with
§ 3161(h)(7), and that should be the end of the matter. See Zedner, 547 U.S. at 507.

However, the majority attempts to circumvent this conclusion by relying on the joint
stipulation, which the magistrate judge attached to its order. According to the majority, the order
“incorporates” the joint stipulation, and thereby complies with § 3161(h)(7). Maj. Op. at 11.
This holding is starkly inconsistent with the Supreme Court’s and this Court’s emphasis on the
importance of complying with § 3161(h)(7)’s procedural strictness. Zedner, 547 U.S. at 508–09;
Brown, 819 F.3d at 822.
 No. 16-1009 United States v. White Page 23

As an initial matter, it is doubtful that the order actually incorporated the joint stipulation,
as the order lacks any “explicit language of incorporation.” See Bender v. Newell Window
Furnishings, Inc., 681 F.3d 253, 264 (6th Cir. 2012). Moreover, the mere agreement of the
parties that the ends of justice outweigh the interest of the defendant and the public in a speedy
trial cannot substitute for the district court’s own findings to that effect. See United States v.
Ammar, 842 F.3d 1203, 1206–07 (11th Cir. 2016) (“The best interests of the parties—and even
those of the court—cannot alone justify deviation from the [Speedy Trial] Act’s requirements,
absent the determination that those interests outweigh the public interest.”); Parisi v. United
States, 529 F.3d 134, 140 (2d Cir. 2008) (“The ends-of-justice determination is . . . entrusted to
the court, not the parties, and the parties cannot stipulate to its satisfaction as a substitute for the
district court’s finding to that effect.”). Congress unequivocally imposed the procedural
requirements of § 3161(h)(7) on the district court. See United States v. Richmond, 735 F.2d 208,
216 (6th Cir. 1984).7

Regardless, even if the magistrate judge “adopted the parties’ stipulation as part of its
own reasoning,” the joint stipulation stated only that the time Defendant spent in plea
negotiations should be excluded “because the ends of justice served by such continuance
outweigh the interests of the public and the defendant in a speedy trial.” Maj. Op. at 11. Such a
conclusory statement does not comply with § 3161(h)(7). See United States v. Toombs, 574 F.3d
1262, 1271 (10th Cir. 2009) (“A record consisting of only short, conclusory statements lacking
in detail is insufficient [to comply with § 3161(h)(7)].”); United States v. Bryant, 523 F.3d 349,
361 (D.C. Cir. 2008) (“The passing reference to the ‘interest of justice’ made by the trial
judge . . . does not indicate that the judge seriously considered the [§ 3161(h)(7)(B) factors].
Zedner makes clear that trial judges are obligated to seriously weigh the benefits of granting the
continuance against the strong public and private interests served by speedy trials. . . .”). Rather,
it is a “maneuver[] aimed at merely paying lip service to the Speedy Trial Act’s requirements.”
Brown, 819 F.3d at 815.

For all of the foregoing reasons, I concur in part and dissent in part.

7
Accordingly, this case is distinguishable from those relied upon by the majority. In none of those cases
did the district court rely solely on the mere agreement of, or findings made by, the parties.