Computing Excludable Delay Under the Speedy Trial Act (Section 3161(h))

How Are the Thirty-Day and Seventy-Day Clocks Computed?

The Speedy Trial Act runs on two clocks. Under 18 U.S.C. § 3161(b), the government has thirty days from arrest or service of summons to file an indictment or information. Under § 3161(c)(1), trial must begin within seventy days of the later of the charging instrument or the defendant’s first appearance before a judicial officer of the trial court.

Computing a Speedy Trial Act claim is arithmetic, not rhetoric. You fix the trigger date, walk the docket day by day, subtract every interval that § 3161(h) makes excludable, and ask whether more than the allowed number of non-excludable days remain. If they do, § 3162 requires dismissal on the defendant’s motion. Almost every real dispute narrows to a few contested intervals rather than the whole timeline, so precision on those intervals is what wins or loses the motion.

One trap deserves early warning: the exclusion categories were renumbered over the decades, and older opinions cite the former letters — the pretrial-motion exclusion was once subsection (F), the advisement cap was (J), and the codefendant provision was (7). The table below states each provision by its current subsection so your ledger tracks the statute in force today, not the one an older case quotes.

How Does the Pretrial-Motion Exclusion Work?

The single largest source of excludable time in most federal cases is pretrial motion practice. Section 3161(h)(1)(D) stops the clock for any delay resulting from a pretrial motion, from the filing of the motion through the conclusion of the hearing on it or its other prompt disposition. The exclusion is automatic, and it does not depend on the motion being important, contested, or in any way responsible for postponing the trial.

In Henderson v. United States, the Supreme Court held that the provision excludes the entire period between filing and the conclusion of the hearing, with no requirement that the delay be “reasonably necessary.” The Court reasoned that Congress knew how to write a reasonableness limit — it did so for codefendant and ends-of-justice delay — and deliberately omitted one here. Years later, in United States v. Tinklenberg, the Court rejected any causation requirement: a pretrial motion tolls the clock on filing whether or not it actually causes, or is expected to cause, any delay in starting the trial.

The practical consequences are large. A motion that sits for months while the court schedules a hearing excludes all of that time. A one-line unopposed motion resolved the same day still stops the clock for that day. When you audit a docket, every entry styled as a motion is a candidate for exclusion, and the government will invoke each one. The defense response is not to argue the motion was trivial — that argument lost in Tinklenberg — but to pin down the exact filing date, the exact disposition date, and whether the motion actually required a hearing, because those dates control the size of the exclusion.

The Thirty-Day Under-Advisement Cap

The pretrial-motion exclusion is not bottomless. Once a motion has been heard and the parties have submitted everything the court reasonably needs, the matter is “actually under advisement,” and § 3161(h)(1)(H) caps the excludable period at thirty days. A judge who holds a fully briefed motion for ninety days does not exclude ninety days; only thirty of them come off the clock, and the remaining sixty count.

The Fifth Circuit enforced that boundary in United States v. Bermea, holding that once a hearing is held and the necessary materials are in, the thirty-day advisement cap applies, and a court cannot stretch the open-ended filing-to-hearing exclusion to swallow it. In United States v. Harris, the court addressed motions referred to a magistrate judge and held that the magistrate’s advisement period and the district judge’s later advisement period each carry their own thirty-day cap, with a short additional exclusion while a report and recommendation is pending or the objection period runs.

This is fertile ground for a computation dispute. The government often treats a motion as tolling the clock straight through from filing to the final ruling, even when briefing closed weeks before the judge acted. Splitting that single interval into the automatic filing-to-submission portion and the capped advisement portion frequently recovers the handful of non-excludable days that decide the motion. The transcript or minute entry showing when argument ended, and the docket showing when the last brief landed, are the anchors for that split.

What Delay Is Not Automatically Excludable?

Not every delay connected to motions is automatic. The most common overcount involves time the court grants a party to prepare and file pretrial motions — time that passes before any motion actually exists. In Bloate v. United States, the Supreme Court held that this pre-filing preparation time is not automatically excludable under § 3161(h)(1)(D). It counts only if the court makes case-specific ends-of-justice findings under § 3161(h)(7).

The distinction is easy to miss on a crowded docket. Suppose the court sets a motions deadline thirty days out and no motion is ever filed. The government may assume those thirty days dropped out because they relate to motion practice. Under Bloate, they did not — unless the order granting that window rested on a proper ends-of-justice finding that the record actually reflects. Absent such a finding, every one of those days counts against the seventy-day clock.

Because Bloate ties the excludability of preparation time to the ends-of-justice mechanism, it forces a close reading of every scheduling order. An order that merely sets a deadline is not the same as one that grants a continuance and explains why the ends of justice require it. That reading is exactly where a careful defense computation diverges — often decisively — from the government’s. The companion satellite on ends-of-justice continuances explains what those findings must contain and when they must appear.

Codefendant Joinder and Attributed Delay

Joinder reshapes the arithmetic. Under § 3161(h)(6), a reasonable period of delay is excludable when a defendant is joined for trial with a codefendant whose own clock has not run and no severance has been granted. In practice, the entire group is measured against a single, shared clock rather than each defendant carrying a separate count.

The Fifth Circuit set out the mechanics in United States v. Franklin: the speedy-trial clock does not begin in a multi-defendant prosecution until the last codefendant makes an initial appearance, and the excludable delay generated by one codefendant’s motion practice is attributed to every codefendant. A defendant added late can therefore inherit months of time that was already excluded before he arrived. But attribution has a ceiling. As both Franklin and United States v. Bermea stress, only a reasonable period is excludable, measured against the totality of the circumstances before trial or the actual prejudice to the objecting defendant.

For a client who was ready early but is held to a codefendant’s slower pace, that reasonableness limit is the point of attack. If a stretch of delay served only one codefendant’s convenience, or if a severance would have let your client go to trial on time, the attributed time may not be reasonable as to your client. Documenting when your client announced ready, and whether and when a severance was sought, frames the argument that the shared clock cannot fairly absorb the entire delay.

Building a Day-by-Day Speedy-Trial Ledger

A Speedy Trial Act motion lives or dies on a clean ledger. Because the analysis is arithmetic, the most persuasive motions attach a day-by-day accounting that starts on the trigger date, lists every docket event that tolls the clock, applies the correct exclusion to each, and totals the non-excludable days that remain. A narrative argument without that table invites the government to substitute its own count.

The raw materials are the court’s own records. The docket sheet supplies filing and disposition dates for every motion; minute entries and hearing transcripts fix when a matter was submitted and when it was decided; scheduling and continuance orders reveal what the court found and when. Read together, they let you separate automatic exclusions from capped advisement time, and both of those from continuances that may or may not rest on adequate findings. A sample ledger looks like this.

Small errors compound. Crediting an extra week of advisement here, or accepting an unsupported continuance there, can be the difference between a timely case and dismissal. The ledger makes each judgment call visible, ties it to a docket entry, and forces the government to answer interval by interval instead of asserting a single lump sum of excluded time.

Filing the Motion to Dismiss and the Waiver Trap

Timing controls the remedy. Under § 3162(a)(2), a defendant who is not tried within the limit may move to dismiss — but the failure to move before trial, or before entering a plea of guilty or nolo contendere, is a complete waiver of the right to dismissal. A flawless computation is worth nothing if it is raised too late, so the deadline to assert the claim matters as much as the count itself.

The motion also carries a burden of production. The defendant must show that the non-excludable days exceed the statutory limit, which is precisely why the ledger matters; the government then answers with the exclusions it claims. Once a violation is established, dismissal is mandatory — the court has no discretion to overlook it. Whether that dismissal is with or without prejudice is a separate question governed by the § 3162(a)(2) factors and covered on the companion page about the dismissal remedy.

Two habits protect the claim. First, calendar the motion early, before any trial setting hardens and well before any plea discussion matures, because the waiver rule is unforgiving and applies even to a strong claim. Second, treat the computation as a living document: each new continuance or motion changes the tally, so a motion filed on stale numbers invites a government correction that can erase the margin. Updating the count at every docket change is the discipline the statute rewards.

Where This Fits

This guide is one of four situations that arise under the Speedy Trial Act Motion to Dismiss. Start with the parent motion for the overall framework, or move to a related fact pattern:

What the Case Law Says

These decisions—verified against primary sources—control how this issue is litigated. Every case still turns on its own facts.

• Henderson v. United States, 476 U.S. 321 (1986) — Section 3161(h)(1) excludes the entire period between filing a pretrial motion and the conclusion of its hearing, without any reasonableness requirement.
• United States v. Tinklenberg, 563 U.S. 647 (2011) — The pretrial-motion exclusion applies automatically on filing, whether or not the motion actually causes or is expected to cause trial delay.
• Bloate v. United States, 559 U.S. 196 (2010) — Time granted to prepare pretrial motions is not automatically excludable; it counts only with ends-of-justice findings under section 3161(h)(7).
• United States v. Bermea, 30 F.3d 1539 (5th Cir. 1994) — Once a motion is heard and materials are submitted, section 3161(h)(1)(H) caps the under-advisement exclusion at thirty days.
• United States v. Franklin, 148 F.3d 451 (5th Cir. 1998) — The clock starts when the last codefendant first appears, and one codefendant's reasonable excludable delay is attributed to all.
• United States v. Harris, 566 F.3d 422 (5th Cir. 2009) — A magistrate judge and the district judge each receive a separate thirty-day under-advisement period for a referred pretrial motion.

General summaries of published opinions for information only — not predictions about any specific case.