Case 1:18-cr-00100-RDB Document 37 Filed 09/19/18 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA
v.
KENNETH BRIAN FISCHER,
Defendant

*
*
*
CRIMINAL NO. RDB-18-0100
*
*
*
*
*
*******

MOTION ON CONSENT TO EXCLUDE
TIME UNDER THE SPEEDY TRIAL ACT
The United States of America, by its undersigned counsel, hereby moves that this Court
make a finding pursuant to 18 U.S.C. § 3161(h)(1) and (7)(A) that time necessary for plea
negotiations is a proceeding within the contemplation of the Speedy Trial Act and that the ends
of justice served by continuing the trial date beyond the 70-day period normally required under
18 U.S.C. § 3161(c)(1) outweigh the best interests of the public and the defendant in a speedy
trial. For the reasons set forth below, the Court should find that the parties need a longer period
than is normally afforded under the Speedy Trial Act for review of the pertinent records, conduct
of plea discussions, and pre-trial preparation in the event that no agreement is reached upon a
plea.
1.

The Defendant was initially charged in a one-count indictment returned by the

grand jury on February 22, 2018 with Attempted Enticement of a Minor, in violation of 18
U.S.C. § 2422(b).
2.
April 6, 2018.

The Defendant had his initial appearance on March 9, 2018 and was arraigned on

 Case 1:18-cr-00100-RDB Document 37 Filed 09/19/18 Page 2 of 6

3.

On April 19, 2018, the Court issued a scheduling order setting a motions deadline

of July 20, 2018, a motions hearing date of August 14, 2018 and for trial to commence on
October 29, 2018. These extended dates were at the request of defense counsel and agreed to by
the Government.
4.

On April 19, 2018, the Government filed a motion on consent to exclude time

under the Speedy Trial clock and the Court granted the motion on April 20, 2018, ordering that
the period between April 6, 2018 and July 20, 2018 be excluded.
5.

On May 3, 2018, the grand jury returned an eight-count superseding indictment

against the Defendant charging him with three counts of Production of Child Pornography, in
violation of 18 U.S.C. § 2251(a); one count of Transportation of Child Pornography, in violation
of 18 U.S.C. §§ 2252(a)(1) and 2256; two counts of Attempted Production of Child
Pornography, in violation of 18 U.S.C. §§ 2251(a) and (e); one count of Receipt of Child
Pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2256; and one count of Attempted
Enticement of a Minor, in violation of 18 U.S.C. § 2422(b).
6.

On June 8, 2018, the parties filed a joint request that the deadline for defense

motions be moved from July 20, 2018 to September 12, 2018 and that the date for the motions
hearing be removed from the calendar. The Court granted that request on June 11, 2018.
7.

On June 19, 2018, the parties submitted a joint request for scheduling which the

Court granted on June 21, 2018 and the Court ordered that the motions hearing was set for
January 9, 2019 and the trial to commence March 4, 2019.

2

 Case 1:18-cr-00100-RDB Document 37 Filed 09/19/18 Page 3 of 6

8.

On September 17, 2018, the Defendant filed a motion on consent for extension of

time to file his pretrial motions and the Court granted that motion on September 18, 2018,
ordering that pretrial motions were due by November 1, 2018.
9.

Defense counsel and government counsel have been engaged in ongoing plea

discussions. However, additional time is necessary so that the parties can continue to engage in
plea negotiations to allow for undersigned counsel to consult internally and with victims
regarding any potential plea offer.
10.

In light of the possibility of plea negotiations, it appears that the 70 days

contemplated by the Speedy Trial Act for discovery, plea negotiations, and if necessary, trial
preparation will be inadequate. In United States v. Leftenant, 341 F.3d 338 (4th Cir. 2003), the
Fourth Circuit held that plea negotiations can serve as the basis for exclusion of time under the
Speedy Trial Act pursuant to § 3161(h)(1). 341 F.3d at 345. Several other circuits have held
that time occupied with plea negotiations may appropriately be treated as one of the other
unspecified “proceedings involving the defendant” that can serve as a basis for excluding time
under the Speedy Trial clock pursuant to § 3161(h)(1). Thus, in United States v. Montoya, 827
F.2d 143, 150 (7th Cir. 1987), the Seventh Circuit expressly held that “The plea bargaining
process can also qualify as one of many ‘other proceedings’ under the generic exclusion of
section 3161(h)(1) . . . . [N]egotiating a plea bargain could be considered a proceeding other than
trial, or preparation for trial, that qualifies for the exclusion.” The Eighth Circuit reached the
same conclusion in United States v. Van Sommeren, 118 F.2d 1214, 1218 (8th Cir. 1997), where
it held that “we exclude the plea negotiations as a ‘proceeding involving defendant’ under §

3

 Case 1:18-cr-00100-RDB Document 37 Filed 09/19/18 Page 4 of 6

3161(h)(1).” This analysis was likewise followed by the Sixth Circuit in United States v.
Bowers, 834 F.2d 607, 610 (6th Cir. 1987), which held that
the periods of delay listed in 18 U.S.C. § 3161(h)(1)(A) through (J) are only
examples of delay ‘resulting from other proceedings concerning the defendant’
and are not intended to be exclusive. All the examples listed are of delaying
circumstances that ought not to be charged to the government. Similarly, the trial
court was warranted in declining to charge this delay to the government, since the
plea bargaining process can qualify as one of many ‘other proceedings.’

In Bowers, the Court of Appeals held that the district court had properly excluded time
under the Speedy Trial Act “based upon its finding that a tentative plea agreement had resulted
from negotiations between defense counsel and the government.” A number of other courts have
reached the same conclusion. See United States v. Hill, 1999 WL 17645, at **2 (6th Cir. 1999);
cf. United States v. Long, 858 F. Supp. 601, 603-04 (N.D.W.Va. 1994) (interim time period
between time that plea agreement was signed and when it was presented to the court would be
excluded under § 3161(h) as a period of delay resulting from “other proceedings” concerning the
defendant). And one of the judges of this Court has likewise previously suggested, in dicta, that
“it is certainly arguable that [plea] negotiations are ‘proceedings concerning the defendant’
within the meaning of the introductory clause of section 3161(h) . . . .” United States v. Scott,
743 F. Supp. 400, 404 (D. Md. 1990) (Kaufman, J.).
A number of courts have also held that continuances to permit additional time for plea
negotiations are proper under § 3161(h)(7) 1, the provision of the Speedy Trial Act authorizing
continuances where doing so will serve “the ends of justice.” For example, in United States v.
Fields, 39 F.3d 439, 445 (3d Cir. 1994), the Third Circuit squarely rejected the suggestion that

1

The provisions of this subsection was codified at 18 U.S.C. § 3161(h)(8) until October 12, 2008.

4

 Case 1:18-cr-00100-RDB Document 37 Filed 09/19/18 Page 5 of 6

§3161(h)(8) could not apply to a continuance granted for purposes of allowing the parties
additional time to pursue plea negotiations: “Nothing in the language of 18 U.S.C. § 3161(h)(8)
suggests that an ‘ends of justice’ continuance may not be granted for this purpose. . . . In current
federal practice, plea negotiations play a vital role. We therefore see no reason why an ‘ends of
justice’ continuance may not be granted in appropriate circumstances to permit plea negotiations
to continue.”
The Fields court further reasoned that although § 3161(h)(1)(I) specifically excludes from
the Speedy Trial Act calculus time resulting from the court’s consideration of a proposed plea
agreement, this did not mean that
Congress meant to preclude an ‘Ends of Justice’ continuance under 18 U.S.C. §
3161(h)(8) for the purpose of permitting plea negotiations to continue. ‘Ends of
justice’ continuances under 18 U.S.C. § 3161(h)(8) were obviously intended for
use in situations that do not fall within one of the exclusions specifically set out in
18 U.S.C. § 3161(h)(1)-(7).
Id. at 445. Other courts have likewise excluded time attributable to plea negotiations under
various factual circumstances. In United States v. Williams, 12 F.3d 452, 460 (5th Cir. 1994), for
example, the Fifth Circuit held that the time period following the collapse of plea negotiations on
the original indictment and the government’s submission of a superseding indictment to the
grand jury was properly excluded from the speedy trial calculation under the “ends of justice”
exclusion, noting: “The plea negotiations favored both sides; we cannot say upon review that
justice was not served by granting a continuance after those negotiations broke down.” And in
United States v. Stackhouse, 183 F.3d 900, 901-02 (8th Cir. 1999), the Eighth Circuit held that
where the defendant engaged in months of plea negotiations, then waited until the very last
minute to announce that he no longer wanted to plead guilty, the district court properly excluded
5

 Case 1:18-cr-00100-RDB Document 37 Filed 09/19/18 Page 6 of 6

the time consumed by the plea negotiations from the speedy trial calculus under the “ends of
justice” exclusion. 1
For the foregoing reasons, the Government requests that a reasonable period of time be
excluded from the Speedy Trial clock pursuant to 18 U.S.C. §3161 (h)(1) and 18 U.S.C.
3161(h)(7)(A) for the purpose of plea negotiations, to allow discovery and, if necessary, trial
preparation to go forward. Specifically, the Government requests that the period between July
20, 2018 and November 1, 2018 be excluded from the Speedy Trial clock. Defense counsel has
indicated that he consents to the filing of this motion.

Respectfully submitted,
Robert K. Hur
United States Attorney
By: ______/s/_________________
Ayn B. Ducao
Assistant United States Attorney
36 South Charles Street
Fourth Floor
Baltimore, MD 21201
(410) 209-4800
Served on defense counsel via ECF filing

1

It appears that only the Ninth Circuit squarely rejects this conclusion. See United States v.
Ramirez-Cortez, 213 F.3d 1149, 1154 (9th Cir. 2000); United States v. Perez-Reveles, 715 F.2d
1348, 1352 (9th Cir. 1983) (“Negotiation of a plea bargain is not one of the factors supporting
exclusion provided in section 3161(h)(8)(B).”).
6

 Case 1:18-cr-00100-RDB Document 37-1 Filed 09/19/18 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA
v.
KENNETH BRIAN FISCHER,
Defendant

*
*
*
CRIMINAL NO. RDB-18-0100
*
*
*
*
*
*******
ORDER

Having considered the grounds advanced in the consent motion by the United States of America
to Exclude Time Under the Speedy Trial Act, and good cause having been shown in support of the relief
requested by this motion, the Court, on this ____ day of September 2018, hereby makes the following
findings of fact: the Court finds that the ends of justice served by granting the requested continuance in
this matter outweigh the best interest of the public and the defendant in a speedy trial, inasmuch as the
parties need a longer period than is normally afforded under the federal Speedy Trial Act for conduct of
plea discussions and pre-trial preparation in the event that no agreement is reached upon a plea.
THEREFORE, IT IS HEREBY ORDERED that the requested motion is GRANTED; and it is
further ORDERED that for the reasons set forth in the government’s motion, all time between July 20,

2018 and November 1, 2018 shall be excluded from calculations of the amount of time that has expired
under the Speedy Trial Act, 18 U.S.C. § 3161 in this case.

_______________________
Richard D. Bennett
United States District Court
District of Maryland