U.S. v. White

• Decision Date: 10 April 2019
• Docket Number: No. 16-1009,16-1009
• Citation: 920 F.3d 1109
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Eugene WHITE, II, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

920 F.3d 1109

UNITED STATES of America, Plaintiff-Appellee,
v.
Jimmie Eugene WHITE, II, Defendant-Appellant.

No. 16-1009

United States Court of Appeals, Sixth Circuit.

Reargued: October 18, 2018
Decided and Filed: April 10, 2019

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

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United States v. Dunbar , 357 F.3d 582, 593 (6th Cir. 2004), vacated and remanded on other grounds , 543 U.S. 1099, 125 S.Ct. 1029, 160 L.Ed.2d 995 (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, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010). Petition for Writ of Certiorari at 22–23, White v. United States , ––– U.S. ––––, 138 S.Ct. 641, 199 L.Ed.2d 522 (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 , ––– U.S. ––––, 138 S.Ct. 641, 199 L.Ed.2d 522 (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 , ––– U.S. ––––, 138 S.Ct. 641, 641, 199 L.Ed.2d 522 (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.

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

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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 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 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, 130 S.Ct. 1345. The Court held that "because a specific provision ... controls one of more general application," id . at 207, 130 S.Ct. 1345 (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

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by district court findings," id . at 206, 130 S.Ct. 1345.

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...