United States v. Klanseck

246 F.Supp.3d 1198

UNITED STATES of America, Plaintiff,

v.Kenneth William KLANSECK, Defendant.

Case No. 13–cr–20625

United States District Court, E.D. Michigan, Southern Division.

Signed March 30, 2017

Eric M. Straus, Saima S. Mohsin, United States Attorney's Office, Detroit, MI, for Plaintiff.

Edward C. Wishnow, Birmingham, MI, for Defendant.

AMENDED ORDER DISMISSING INDICTMENT PURSUANT TO 18 U.S.C. § 3161(A)(2), GRANTING MOTION TO DISMISS [40], FINDING MOTION FOR WITHDRAWAL OF ATTORNEY [44] MOOT AND CANCELING HEARING

GERSHWIN A. DRAIN, United States District Judge

I. INTRODUCTION

On August 22, 2013, the grand jury filed an Indictment against Defendant Kenneth William Klanseck (hereinafter "Defendant"). Dkt. No. 18. The Indictment charges Defendant with one count of Theft of a Firearm, 18 U.S.C. § 924(l) ; one count of Possession of a Stolen Firearm, 18 U.S.C. § 922(j) ; one count of Possession of a Firearm by an Illegal Drug User, 18 U.S.C. § 922(g)(3) ; and one count of Possession of Methamphetamine, 21 U.S.C. § 844. Id. at 1–3 (Pg. ID 27–29).

Presently before the Court is Defendant's Motion to Dismiss, filed on or about July 5, 2016, before the district judge who previously presided over the instant matter. Dkt. No. 40. The Government filed a response on August 12, 2016, Dkt. No. 43, and a partial hearing was held on November 17, 2016. The case was reassigned to the undersigned on February 1, 2017, prior to any continuation of the earlier hearing.

Upon review of the pleadings, the Court finds that oral argument will not aid in the disposition of this matter. Accordingly, the Court will decide the matter on the submitted brief. See E.D. Mich. L.R. 7.1(f)(2). For the reasons stated below, the Court will GRANT Defendant's Motion to Dismiss [# 40].¹

II. BACKGROUND

On June 7, 2013, Defendant was charged in a criminal complaint in this Court and a warrant was issued for his arrest. Dkt. Nos. 1–2. Defendant and the Government twice stipulated to adjourn the preliminary examination so that the parties could engage in pre-indictment discussions on July 9, 2013, and August 5, 2013. Dkt. Nos. 13, 17. On August 22, 2013, the grand jury filed an indictment against Defendant. On August 26, 2013, Defendant was arraigned on the Indictment.

On August 29, 2013, the Government filed a Motion for Revocation of Pretrial Release Order. Dkt. No. 22. Defendant responded, Dkt. No. 25, and the prior district judge handling this matter held a hearing on the motion on September 24, 2013, granting the Government's Motion, Dkt. No. 27.

On December 2, 2013, the Court entered a Stipulated Order for Continuance of Trial, wherein the parties stipulated and agreed to adjourn trial until February 19, 2014 to accommodate plea discussions. Dkt. No. 28, p. 1 (Pg. ID 59). On February 6, 2014, the Court entered a second stipulated order for continuance of trial, adjourning trial until May 20, 2014, to accommodate plea discussions. Dkt. No. 29, p. 1 (Pg. ID 61). The Court entered a third stipulated order for continuance of trial on May 20, 2014, adjourning trial until August 4, 2014, to accommodate plea discussions. Dkt. No. 30, p. 1 (Pg. ID 63).

Defendant's attorney sought to withdraw on July 16, 2014, noting that Defendant had been charged in a more substantial case before the Honorable Nancy G. Edmunds, United States v. Kenneth Klanseck , case number 13–cr–20685. Dkt. No. 32, p. 1 (Pg. ID 66). Defendant's attorney, Edward C. Wishnow, sought to withdraw in the case before Judge Edmunds based on a breakdown of the attorney-client relationship, and Judge Edmunds granted the motion and appointed Sharon Payne as substitute CJA appointed counsel for Defendant. Id. The district judge granted counsel's motion to withdraw and appointed Ms. Payne to represent Defendant on July 21, 2014. Dkt. No. 33.

On September 9, 2014, the Court entered a fourth stipulated order for continuance of trial, adjourning trial until February 5, 2015. Dkt. No. 35, p. 1 (Pg. ID 71). The parties also argue that on February 9, 2015, they executed a fifth stipulated order for continuance of trial, extending the excludable delay period until May 13, 2015, but the order was never entered with the Court and is not on the docket. Dkt. No. 40, p. 2 (Pg. ID 83). There were no subsequent orders waiving Defendant's right to a speedy trial. Id. at 3 (Pg. ID 84).

On May 10, 2016, Defendant's counsel, Sharon Payne, filed a Motion to Withdraw as Counsel. Dkt. No. 37, p. 1 (Pg. ID 76). Payne had represented Defendant in the case before Judge Edmunds, which was resolved with a plea. Id. at 2 (Pg. ID 77). On April 11, 2016, Judge Edmunds sentenced the Defendant to ten years' incarceration. This was well below the Government's requested sentence of fourteen to fifteen years. After sentencing, Defendant filed a Notice of Appeal in the Sixth Circuit Court of Appeals, alleging he was not properly represented by Payne at his sentencing and claiming her representation was ineffective. Id. This Appeal by Defendant gave rise to an irreconcilable conflict between counsel and her client, impairing Payne's ability to adequately and effectively represent Defendant's legal interests. Id. The district judge held a hearing on the motion on June 2, 2016, where the motion was found to be moot after Defendant and Payne agreed to continue representation. Dkt. No. 39.

On July 5, 2016, Defendant filed a Motion to Dismiss for violation of his right to speedy trial, pursuant to 18 U.S.C. § 3161(h)(7)(A). Dkt. No. 40, p. 1 (Pg. ID 82). The Government responded on August 12, 2016. Dkt. No. 43.

The district judge initially scheduled a hearing on the Motion to Dismiss for September 9, 2016. Dkt. No. 42. The hearing was reset for October 19, 2016, then reset for October 24, 2016, then reset for November 11, 2016, then reset for November 7, 2016, and finally reset again for November 17, 2016. The hearing on November 17, 2016 was to be continued for December 19, 2016. That hearing continuation was reset for January 12, 2017, and then it was cancelled one last time without rescheduling a final hearing date.

Defendant's counsel, Payne, filed a second Motion for Withdrawal on January 16, 2017. Dkt. No. 44. In that Motion, Payne notes that the Motion to Dismiss had been adjourned to allow counsel time to investigate Defendant's claim that an important defense witness is no longer available, due to his severely impaired cognitive abilities. Id. at 2 (Pg. ID 96). While Payne was attempting to investigate this claim, Defendant engaged in ex parte correspondence with the Court, alleging that Payne was not representing him properly and that he was being denied the effective assistance of counsel. Id. at 3 (Pg. ID 97).

The case was reassigned to the undersigned on February 1, 2017.

III. LAW & ANALYSIS

A. The Speedy Trial Act

The Speedy Trial Act protects defendants' and the public's interest in timely criminal trials. See United States v. Noone , 913 F.2d 20, 28 (1st Cir. 1990), cert. denied , 500 U.S. 906, 111 S.Ct. 1686, 114 L.Ed.2d 81 (1991). Section 3161(c)(1) of the Act requires that a defendant's trial commence within seventy days of the date he was indicted or the date he first appeared in court, whichever is later. United States v. Tinson , 23 F.3d 1010, 1012 (6th Cir. 1994). "The Act provides the flexibility necessary to conduct fair criminal trials by excluding days from the seventy-day Speedy Trial clock for various pretrial proceedings." United States v. Dunbar , 357 F.3d 582, 591 (6th Cir. 2004) (citing 18 U.S.C. §§ 3161(h)(1)–(9)vacated and remanded on other grounds by Dunbar v. United States , 543 U.S. 1099, 125 S.Ct. 1029, 160 L.Ed.2d 995 (2005) ; United States v. Mentz , 840 F.2d 315, 325 (6th Cir. 1988) ).

If more than seventy non-excludable days pass before the commencement of trial, the Act mandates dismissal of the indictment upon motion by the defendant. 18 U.S.C. § 3162(a)(2). The trial court has discretion to decide whether to dismiss the indictment with or without prejudice. Id.

B. The Parties' Arguments

Defendant argues that the Indictment is subject to mandatory dismissal under § 3162(a)(2) of the Speedy Trial Act (STA). Dkt. No. 40, p. 5 (Pg. ID 86). The Government concurs that the STA clock has expired, but argues that the Indictment should be dismissed without prejudice. Dkt. No. 43, p. 2 (Pg. ID 90).

Accordingly, the Court finds that the Indictment must be dismissed pursuant to § 3162(a)(2) of the STA.

C. Dismissal With or Without Prejudice

"The Speedy Trial Act does not specify whether dismissal should be with or without prejudice, nor does it contain a default presumption one way or the other." United States v. Robinson , 389 F.3d 582, 586 (6th Cir. 2004) (citing 18 U.S.C. § 3161(a)(2) ). When making this determination, the district court is obligated to make findings concerning the following three factors: (1) seriousness of the offense, (2) the facts and circumstances of the case that led to the dismissal, and (3) the impact of a reprosecution on the administration of the STA and on the administration of justice.

United States v. Taylor , 487 U.S. 326, 333, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988) (citing 18 U.S.C. § 3162(a)(2) ).

The Taylor court discussed the importance of this analysis:

Where, as here, Congress has declared that a decision will be governed by consideration of particular factors, a district court must carefully consider those factors as applied to the particular case and, whatever its decision, clearly articulate their effect in order to permit meaningful appellate review. Only then can an appellate court ascertain whether a district court has ignored or slighted a factor that Congress deemed pertinent to the choice of remedy, thereby failing to act within the limits prescribed by Congress.

Id. at 336–37.

Under the STA, dismissal of charges with prejudice is a high burden for the Defendant to meet. Dismissal with prejudice requires a showing of a "truly neglectful attitude," "bad faith," a "pattern...