UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No. 09-20225

SCOTT SAMONEK,

Defendant.

 /

ORDER DENYING DEFENDANT’S “MOTION TO DISMISS INDICTMENT FOR

VIOLATION OF SPEEDY TRIAL ACT”

On November 13, 2009, Defendant Scott Samonek filed a “Motion to Dismiss

Indictment for Violation of Speedy Trial Act.” The Government filed a response on

November 23, 2009, and Defendant filed a reply on December 16, 2009. On December

23, 2009, the court directed the Government to file a sur-reply, which it did on

December 30, 2009. Having reviewed the briefs, the court concludes a hearing on this

motion is unnecessary. See E.D. Mich. LR 7.1(e)(2). For the reasons stated below, the

court will deny Defendant’s motion.

I. BACKGROUND

Defendant made his initial appearance on February 11, 2009, following his arrest

on a federal criminal complaint. A detention hearing was held on February 12, 2009,

and the magistrate judge ordered Defendant detained pending trial. A preliminary

examination was then scheduled for February 23, 2009. 

On February 18, 2009, the Assistant United States Attorney assigned to the

case, Louis P. Gabel, and Defendant’s attorney at the time, Gil Whitney McRipley,

stipulated to adjourn the preliminary examination, stating that there was good cause to

adjourn it, that the extension was “necessary to continue case investigation and serve

the ends of justice,” and that Defendant agreed it was in his best interest, “taking into

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account the public interest in the prompt disposition of criminal cases.” (2/18/09

Stipulation.) On February 24, 2009, the magistrate judge acknowledged the stipulation

of the parties and “ordered that good cause exists to extend” the preliminary

examination until March 23, 2009. (2/24/09 Order.)

In the meantime, the parties engaged in plea negotiations. On February 25,

2009, the Government sent McRipley an email with the following attachments: (1) a

proposed Rule 11 Plea Agreement, (2) Rule 11 sentencing worksheets, (3) a

Cooperation Agreement, and (4) a Kastigar letter. (Gov’t’s Sur-reply Ex. A.) The

Government offered Defendant the opportunity to plead guilty by way of information to

(1) possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), and (2) felon in

possession of a firearm, 18 U.S.C. § 922(g)(1), in exchange for not charging (3)

distribution of cocaine, 21 U.S.C. § 841(a)(1), and (4) possession of a firearm in

furtherance of a drug trafficking crime, 18 U.S.C. § 924(c). (See id.) The Government

calculated Defendant’s sentencing guideline range as 188-235 months if he accepted

this plea, and as 262-327 months if he was indicted on all counts and found guilty at

trial. (Id.) The following day, McRipley responded from his Blackberry, “Got the

attachments. Starting a murder trial mon. I ll [sic] get back to you after its over. 

Samonek wants to talk.” (Id. Ex. B.) On March 5, 2009, McRipley met with Defendant

“at WCJ regarding the review of these materials and status of this case.” (Suppl.

Statement in Support of McRipley’s Motion to Withdraw Ex. 3, Legal Services Invoice.)

After McRipley apparently never got back to the Government, Gabel inquired of

McRipley by email on March 9, 2009, 

Have you had an opportunity to discuss the proposed plea (emailed to you

on 2/25/09) with Mr. Samonek? I will need to know whether he is going to

proceed with a plea soon in order to reserve grand jury time or in order to

have enough time to get supervisor approval to not charge certain

offenses.

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(Id. Ex. C.) McRipley replied six minutes later, “I plan to see this week (I know -pre

indictment) and discuss options with you and your agents.” (Id.) 

As it turned out, McRipley was unable to obtain Defendant’s acceptance of the

plea and cooperation agreements prior to the preliminary examination scheduled for

March 23, 2009. (Gov’t’s Sur-reply at 4.) McRipley informed the Government in a

telephone conversation that Defendant was willing to sit for a debriefing with ATF

agents and that Defendant would likely sign the Rule 11 paperwork at that time. (Id.) 

This meeting was scheduled for April 1, 2009. (Id.) 

The parties therefore stipulated to an adjournment of the March 23, 2009

preliminary examination. (3/13/09 Stipulation.) The magistrate judge ordered the

preliminary examination continued until April 20, 2009. (3/17/09 Order.) Neither the

stipulation nor the order granting the continuance mentioned that the “ends of justice”

served by granting the continuance would “outweigh the best interest of the public and

the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). 

Before the meeting scheduled for April 1, 2009, Gabel received supervisor

approval for the pre-indictment plea agreement. (Gov’t’s Sur-reply at 5.) On March 26,

2009, Gabel emailed McRipley, stating, “Attached are the plea papers for Mr. Samonek. 

I will bring the originals to the proffer on April 1st so that he can sign those. ATF Agent

Mike Parsons and myself will be attending the proffer.” (Id. Ex. D.)

The day before the scheduled proffer, McRipley sent the following email to

Gabel, “I’m still in trial. Should be over in two days can we reset the debriefing [sic]. I

haven’t had the chance to talk to him yet.” (Id. Ex. C.) Gabel responded, “We already

have him scheduled to be transported by the Marshals, but I will try to cancel it now.” 

(Id.) McRipley replied, “I apologize. We’ve been in trial since last Tuesday. Double

defendant murder. Sorry -----.” (Id.)

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The debriefing was rescheduled for April 22, 2009. (Gov’ts Sur-reply at 5.) 

Therefore, the preliminary examination scheduled for April 20, 2009, needed to be

adjourned. On April 10, 2009, the Government and McRipley stipulated to adjourn the

preliminary examination until June 8, 2009, and the magistrate judge ordered it

continued until that date. (4/13/09 Order.) Like the previous stipulation and order, there

is no mention that the “ends of justice” served by granting the continuance would

“outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. 

§ 3161(h)(7)(A). 

The April 22, 2009 debriefing never occurred. According to McRipley’s invoice,

Defendant decided “to review other law and matters, event rescheduled.” (Suppl.

Statement in Support of McRipley’s Motion to Withdraw Ex. 3, Legal Services Invoice.) 

On April 28, 2009, McRipley wrote to the Defendant,

Initially, it was thought that a negotiated plea could be worked out in all

your cases, but now matters have changed. You have a right to fight all

your cases, but you can not get a bond hearing without your case being

indicted and set before a judge or unless you appeal the magistrate’s

ruling before a duty judge. The preliminary exam in this case has been

adjourned to June 8, 2009. So the US Attorney has until then to indict

you. They wanted to negotiate a plea “pre-indictment” but they have

indicated that the same plea offer will remain open even if you secure new

counsel. Also, the opportunity for a better offer still remains if assistance

is given. 

(Id. Ex. 2.) Another debriefing was scheduled for May 5, 2009; however, this debriefing

was cancelled as well. (See id. at 1-2, Ex. 3) McRipley’s invoice indicates that

Defendant requested additional research. (Id. Ex. 3.)

Ultimately, “it became apparent to the [G]overnment that Defendant was not

seriously interested in considering the proposed plea agreement.” (Gov’t’s Sur-reply at

5.) On May 21, 2009, a grand jury indicted Defendant on four counts: (1) distribution of

cocaine, 21 U.S.C. § 841(a)(1); (2) possession with intent to distribute cocaine, 21

U.S.C. § 841(a)(1); (3) possession of a firearm in furtherance of a drug trafficking crime,

18 U.S.C. § 924(c); (4) felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Before

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the indictment, the plea agreement offer by the Government was never withdrawn by

the Government or rejected by Defendant. (Id.)

On June 16, 2009, McRipley filed a motion to withdraw because of Defendant’s

lack of additional payments and because of Defendant’s decision to not pursue “some

opportunities for resolution.” (6/25/09 Hearing.) After stressing to McRipley that a

defendant’s decision to proceed to trial did not represent a breakdown in the attorneyclient relationship, the court granted the motion to withdraw. (Id.; 9/30/09 Order.) The

Federal Defender’s Office was then appointed to represent Defendant. David C. Tholen

entered an appearance on October 2, 2009, and filed the present motion to dismiss the

indictment for violation of the Speedy Trial Act on November 13, 2009.

II. DISCUSSION

The Speedy Trial Act provides that an “indictment charging an individual with the

commission of an offense shall be filed within thirty days from the date on which such

individual was arrested.” 18 U.S.C. § 3161(b). In his motion, Defendant argues that the

Speedy Trial Act was violated because he was not indicted until approximately ninety

days following his arrest. (Def.’s Mot. at 2.) The Government argues that there was no

Speedy Trial Act violation because most, if not all, of that time period should be

excluded from the Speedy Trial Act time calculation. (See Gov’t’s Sur-reply at 6.)

A. Ends of Justice

Certain periods of time are excluded when computing the time in which an

indictment must be filed. See 18 U.S.C. § 3161(h). For example, the Act excludes from

computation:

[a]ny period of delay resulting from a continuance granted by any judge on

his own motion or at the request of the defendant or his counsel or at the

request of the attorney for the Government, if the judge granted such

continuance on the basis of his findings that the ends of justice served by

taking such action outweigh the best interest of the public and the

defendant in a speedy trial.

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Id. § 3161(h)(7)(A). If the court does not set forth its reasons for finding that the “ends

of justice” served by granting the continuance “outweigh the best interest of the public

and the defendant in a speedy trial,” then the delay “shall not be excludable” from the

Speedy Trial Act calculation. Id.

In this case, the initial briefing of the parties focused on the “ends of justice”

exception and whether or not the Defendant’s consent to the adjournments of his

preliminary exam was necessary to toll the Speedy Trial Act clock. Under Sixth Circuit

precedent, however, a defendant’s consent is not necessary in order for an “ends of

justice” continuance to toll the Speedy Trial Act clock. See United States v. Sobh, 571

F.3d 600, 603 (2009). Thus, Defendant’s assertion that he did not consent to these

continuances because McRipley never notified him of them is irrelevant, and no

evidentiary hearing is necessary to resolve this dispute. 

In his reply, Defendant for the first time raised the argument that the stipulations

did not comply with the “ends of justice” exception because “the stipulations did not offer

any basis on which the court could have determined that granting the adjournments

served the ends of justice and outweighed the best interest of the public and the

defendant in a speedy trial.” (Def.’s Reply at 3.) Because the second and third

continuances granted by the magistrate judges did not appear on their face to comply

with this exception, the court ordered the Government to file a sur-reply. In the surreply, the Government concedes, and the court agrees, that the “ends of justice”

exception is not available in this case. (Gov’t’s Sur-reply at 2 (“Thus, if the magistrate

judge did not make ‘ends of justice’ findings (either on the record or simply in his mind)

before granting the continuances, as it appears happened in this case, Defendant is

correct that the ‘ends of justice’ continuance is likely unavailable to toll the Speedy Trial

Act clock.” (footnote omitted).) 

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B. Plea Bargaining

Instead, the Government argues that the period of time when the parties were

engaged in plea bargaining is excludable under the Speedy Trial Act and therefore there

was no violation in this case. (Id. at 2-6.) 

Under the Speedy Trial Act, “[a]ny period of delay resulting from other

proceedings concerning the defendant” is excluded from the Speedy Trial Act

calculation. 18 U.S.C. § 3161(h)(1). In subsections (A) through (J), the statute goes on

to list a number of examples of these proceedings for which the time is explicitly

excluded. Id. Theses periods of delay listed in “(A) through (J) are only examples of

delay ‘resulting from other proceedings concerning the defendant’ and are not intended

to be exclusive.” United States v. Bowers, 834 F.2d 607, 610 (6th Cir. 1987). Thus,

although plea bargaining is not specifically listed as one of these proceedings in the

statute, the Sixth Circuit has stated that “the plea bargaining process can qualify as one

of many ‘other proceedings.’” Id. at 610 (citing United States v. Montoya, 827 F.2d 143,

150 (7th Cir. 1987)); see also United States v. Hill, No. 97-6364, 1999 WL 17645, at *2

(6th Cir. Jan. 4, 1999). The Sixth Circuit reasoned that “all of the listed examples are of

delaying circumstances that ought not to be charged to the government” and the plea

bargaining process is one of these circumstances. Hill, 1999 WL 17645, at *2. The

Sixth Circuit cautioned, however, that “the exclusion for plea bargaining proceedings

allowed under Bowers should not be viewed as unlimited, or otherwise abused.” Id. at

*2 n.3. 

The prior Sixth Circuit cases excluding the plea bargaining proceedings from the

Speedy Trial Act calculation have many similarities to the present case. In Bowers, the

defendant was not indicted until thirty-five days after his arrest. 834 F.2d at 609. After

his arrest, the defendant and the government engaged in plea negotiations. Id. at 608-

609. The parties reached a tentative plea agreement whereby the defendant would

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waive an indictment and plead guilty to a one-count information. Id. at 609. The

Government’s counsel prepared an agreement and information, and Defendant’s

counsel promised to review the agreement with defendant. Id. At the arraignment,

defendant informed the magistrate and United States Attorney that he was not going to

plead guilty. Id. The United States Attorney scheduled to present the matter to the next

grand jury session, which was two weeks later. Id. In the meantime, the defendant filed

a motion for release from custody because he had not been indicted and over thirty

days had passed since his arrest. Id. 

The district court determined that the indictment was timely because the defense

counsel failed to notify the United States Attorney that the defendant rejected the plea

agreement until fifteen days later, at which point the thirty days had passed. Id. The

district court was concerned that “a defendant not be permitted to ‘sandbag’ the

government under these kinds of circumstances.” Id. The Sixth Circuit affirmed the

district court’s determination that the indictment was timely because the plea bargaining

process was excludable from the Speedy Trial Act calculation. Id. at 609-610. The

Sixth Circuit reasoned that “[w]here the total period allowed for indictment is only thirty

days, failure by the defendant during half that period to communicate to the government

his rejection of a tentative plea agreement can be viewed as delay resulting from

proceedings concerning the defendant.” Id. at 610. The Sixth Circuit stated that the

“district court was justified in its stated belief that these circumstances constituted an

‘extreme case,’ since the matter could no longer then be presented to the grand jury

within the thirty-day period.” Id.

In Hill, the defendant was not indicted until over eight months after his arrest. 

Hill, 1999 WL 17645, at *1. In the interim, the parties attempted to negotiate a plea

agreement. Id. The parties initially agreed orally that the Government would not indict

the defendant while he considered pleading guilty to one drug count in exchange for the

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Government not pursuing a gun count, among other things. Id. A hearing was held, but

the defendant decided not to plead guilty and instead requested a new lawyer. Id. A

new lawyer was appointed for the defendant, and then subsequently another new

lawyer was appointed for the defendant. Id. at *1-*2. In each case, the defendant

wanted the lawyer to file a motion to dismiss based on a Speedy Trial Act violation, and

in each case, the lawyer felt that he could not do so ethically based on the prior

agreement with the Government. Id. Eventually, the defendant filed a pro se motion to

dismiss based on the Speedy Trial Act. Id. at *2. Five days later, the Government

indicted the defendant on two counts. Id. 

The district court denied the defendant’s motion, concluding that the period of

time when the parties were negotiating a plea agreement was excludable under th Act. 

Id. at *1. The Sixth Circuit agreed, finding that the pre-indictment time for plea

bargaining was excludable under 18 U.S.C. § 3161(h)(1) and thus there was no

violation of the Speedy Trial Act. Id. It reasoned that the facts of the case indicated

“that the government was prepared at all times to indict [the defendant], but agreed not

to at the request of [defendant’s] counsel due to ongoing plea negotiations and by order

of the original trial judge.” Id. The Sixth Circuit agreed with the district court that “these

delaying circumstances are not chargeable to the government.” Id. 

In the present case, the court concludes that the pre-indictment delay of the

proceedings was the result of plea negotiations between the Government and defense

counsel and therefore excludable from the Speedy Trial Act under 18 U.S.C. §

3161(h)(1). See id.; Bowers, 834 F.2d at 610. Like the prosecution in Hill, the

Government was prepared at all times to indict Defendant. For instance, in a March 9,

2009 email to McRipley, Gabel stated, “I will need to know whether he is going to

proceed with a plea soon in order to reserve grand jury time.” (Gov’t’s Sur-reply Ex. C.) 

The Government, like the prosecution in Hill, prepared an agreement, and McRipley,

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like the defense counsel in Hill, promised to discuss the agreement with Defendant. As

in Hill, Defendant was not immediately indicted because the Government offered not to

indict him on certain counts if he pled guilty to others by way of information. The preindictment delay of approximately three months for plea negotiations in this case is

substantially less than the eight-month delay that was allowed in Hill. The Government

was not neglecting this case, but instead was actively following up with McRipley in

order to determine the feasibility of finalizing a plea agreement. 

Nor was the Government unreasonably chasing a plea agreement. In one email,

McRipley stated to the Government, “Samonek wants to talk.” (Gov’t’s Sur-reply Ex. B.) 

In another email, McRipley stated, “ I plan to see this week (I know -pre indictment) and

discuss options with you and your agents.” (Id. Ex. C.) Also, on three separate

occasions, the Government set up debriefings with Defendant and ATF agents,

including arranging for the Marshals to transport Defendant, but these debriefings never

occurred, at no fault of the Government.

Even after the last debriefing was cancelled, the plea offer remained outstanding

and was not revoked by the Government. On February 25, 2009, the Government sent

McRipley an email with the following attachments: (1) a proposed Rule 11 Plea

Agreement, (2) Rule 11 sentencing worksheets, (3) a Cooperation Agreement, and (4) a

Kastigar letter. (Gov’t’s Sur-reply Ex. A.) On March 26, 2009, Gabel emailed McRipley,

stating, “Attached are the plea papers for Mr. Samonek. I will bring the originals to the

proffer on April 1st so that he can sign those.” (Id. Ex. D.) Defendant was aware the

plea agreement offer remained outstanding, as evinced by McRipley’s April 28, 2009

letter to him, which stated, “They wanted to negotiate a plea ‘pre-indictment’ but they

have indicated that the same plea offer will remain open even if you secure new

counsel.” (Suppl. Statement in Support of McRipley’s Motion to Withdraw Ex. 2.) 

However, at no point prior to the indictment was it ever conveyed to the Government

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that Defendant rejected these proposed agreements. Thus, like in Bowers where

defense counsel never conveyed the defendant’s rejection of the plea agreement, this

court concludes that Defendant’s failure “to communicate to the government his

rejection of a tentative plea agreement [if he even ever rejected it] can be viewed as

delay resulting from proceedings concerning the defendant.” 834 F.2d at 610. If

Defendant did not wish to cooperate or plead guilty and wanted to cease negotiations,

he could have informed the Government and based on the Government’s

representation in the emails, it would have then reserved grand jury time to seek an

indictment. 

This court shares the same sandbagging concerns as expressed by the district

court in Bowers. Dismissing the indictment in this case would create an incentive for

defendants to drag their feet through the plea bargaining process in the hopes that it

may result in a “get out of jail free card” if a court were to dismiss the indictment with

prejudice based on a violation of the Speedy Trial Act.

The focus of Defendant’s motion and briefs is that he never consented to the

adjournments of the preliminary exams agreed to by McRipley. (Def.’s Mot. ¶ 9; Def.’s

Reply at 3.) However, even if Defendant could show that McRipley was acting without

his consent, it would not change the result. When dealing with a defendant in a criminal

case, the Government is obligated to communicate with a defendant through his

attorney. The Government must therefore rely on the communications coming from

defense counsel as if they were authorized by the defendant. See United States v.

Lewis, 39 F. App’x 337, 339 (7th Cir. 2002) (“In ‘our system of representative litigation, .

. . [a] party is deemed bound by the acts of his lawyer-agent,” and unless a defendant

requests to proceed pro se, then his counsel necessarily speaks for him. (quoting Link

v. Wabash R.R. Co., 370 U.S. 626, 634 (1962) (alteration in original)). Otherwise, the

Government and the court would be put “in the precarious position of having to

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Even if the court had found a Speedy Trial Act violation, the indictment would

have been dismissed without prejudice. See 18 U.S.C. § 3162(a)(1). The court must

consider three factors when deciding whether to dismiss a case with or without

prejudice: (1) “the seriousness of the offense,” (2) “the facts and circumstances of the

case which led to the dismissal,” and (3) “the impact of a reprosecution on the

administration of this chapter and on the administration of justice.” Id. 

All of these factors weigh against dismissing this case with prejudice. Defendant

is charged with four serious offenses and faces a potential lengthy prison sentence of

262 to 327 months. The firearms recovered were particularly lethal and readily

accessible by both Defendant and a child living in the home. As discussed above, the

delayed indictment in this case was the direct result of the plea negotiations between

the parties, and Defendant or his counsel repeatedly urging the Government to agree

with adjournments and cancelled debriefings. Preventing reprosecution would frustrate

the administration of justice and the Speedy Trial Act as well as chill plea negotiations

by encouraging Defendants to “sandbag” during the plea negotiation process in order

seek a dismissal based on a delayed indictment. 

Moreover, “[d]ismissals with prejudice generally require a showing of a ‘truly

neglectful attitude,’ ‘bad faith,’ a ‘pattern of neglect,’ or other serious misconduct, as well

as actual prejudice to the defendant.” United States v. Gaskin, 364 F.3d 438, 451 n.3

12

determine whether a defendant’s legal counsel or the defendant himself is actually

speaking for a defendant.” United States v. Bryant, No. 96-4359, 1998 WL 39393, at *3

(4th Cir. Feb. 2, 1998). While Defendant may regret his initial choice of attorney, the

Government cannot be punished for this choice. See Vermont v. Brillon, 129 S. Ct.

1283 (2009) (applying the Sixth Amendment) (“Because ‘the attorney is the

[defendant’s] agent when acting, or failing to act, in furtherance of the litigation,’ delay

caused by the defendant’s counsel is also charged against the defendant. The same

principle applies whether counsel is privately retained or publicly assigned.” (alteration

in original) (citation omitted)).

Accordingly, the court concludes that the delaying circumstances in this case are

not chargeable to the Government. Hill, 1999 WL 17645, at *2. The delay caused by

the plea negotiations, which began no later than February 18, 2009, when the parties

first stipulated to a continuance, and never formally concluded before Defendant was

indicted on May 21, 2009, is excluded under 18 U.S.C. § 3161(h)(1) from the Speedy

Trial Act time calculation. See id.; Bowers, 834 F.2d at 610. Thus, the Speedy Trial Act

was not violated in this case.1

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(2d Cir. 2004) (quoting United States v. Taylor, 487 U.S. 326 (1988)) (citations omitted). 

None of these are present in this case. Thus, if the court had found a violation, it would

have been required to dismiss without prejudice.

S:\Cleland\JUDGE'S DESK\C1 ORDERS\09-20225.SAMONEK.SpeedyTrialAct.npk.wpd

13

III. CONCLUSION

For the reasons above, IT IS ORDERED that Defendant’s “Motion to Dismiss

Indictment for Violation of Speedy Trial Act” [Dkt. # 22] is DENIED.

s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: January 20, 2010

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, January 20, 2010, by electronic and/or ordinary mail.

s/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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