United States District Court, E.D. Michigan, Southern Division
R. GRAND UNITED STATES MAGISTRATE JUDGE
AMENDED ORDER DISMISSING INDICTMENT PURSUANT TO 18
U.S.C. § 3161(A)(2), GRANTING MOTION TO DISMISS ,
FINDING MOTION FOR WITHDRAWAL OF ATTORNEY  MOOT AND
GERSHWIN A. DRAIN United States District Judge.
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).
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.
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
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.
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.
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.
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).
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.
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).
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.
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.
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.
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,