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United States v. Klanseck

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

March 30, 2017

United States of America, Plaintiff,
v.
Kenneth William Klanseck, Defendant.

          DAVID R. GRAND UNITED STATES MAGISTRATE JUDGE

          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(1); 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 1 Because the Court is granting the Defendant's Motion to Dismiss with prejudice, counsel's Motion to Withdraw [#44] is MOOT.

         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, ...


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