United States v. Solnin

• Decision Date: 23 January 2015
• Docket Number: No. 12–cr–040 ADS.,12–cr–040 ADS.
• Citation: 81 F.Supp.3d 193
• Parties: UNITED STATES of America, Plaintiff, v. Gilbert SOLNIN, also known as “Gil Solnin” and “Gil Solomon,” Defendant.
• Court: U.S. District Court — Eastern District of New York

81 F.Supp.3d 193

UNITED STATES of America, Plaintiff

v.Gilbert SOLNIN, also known as “Gil Solnin” and “Gil Solomon,” Defendant.

No. 12–cr–040 ADS.

United States District Court, E.D. New York.

Signed Jan. 23, 2015.

United States Attorney for the Eastern District of New York, Assistant United States Attorney, Allen L. Bode, Central Islip, NY, for the Plaintiff.

Haley Weinblatt & Calcagni, LLP, by: Richard D. Haley, Jr., Esq., of Counsel, Islandia, NY, for the Defendant.

Terrence P. Buckley, Esq., Commack, NY, for the Defendant.

DECISION AND ORDER

SPATT, District Judge.

Presently pending before the Court is a motion by the Defendant Gilbert Solnin (the “Defendant”) pursuant to 18 U.S.C. § 3162(a)(1) to dismiss with prejudice Counts One, Two, Three, Four, Five, Six, Seven, Eight, Ten, Eleven, Twelve, Thirteen, Fourteen, and Fifteen of the Superseding Indictment due to the alleged failure of the Government to comply with the time limit required by the Speedy Trial Act of 1974, 18 U.S.C. § 3161(b) and Federal Rule of Criminal Procedure 48(b)(1). The remaining counts of the Superseding Indictment, namely, Count Nine, Count Sixteen, Count Seventeen, Count Eighteen, and Count Nineteen are not subject to the instant motion.

On October 23, 2014, subsequent to the filing of the instant motion, a Second Superseding Indictment was returned against the Defendant, charging him with two additional counts of wire fraud and one count of making a false statement in violation of 18 U.S.C. §§ 1001(a)(2) and 3551 et seq.

With the Defendant's consent, the Court will treat the motion to dismiss the above-mentioned counts of the Superseding Indictments as directed to the corresponding counts of the Second Superseding Indictment. As the motion to dismiss does not address the specific charges brought for the first time in the Second Superseding Indictment, the Court assumes that they are not the subject to the instant motion.

The Defendant also seeks an order directing the Government to (1) supply a Bill of Particulars in the form of the identity of the “John Doe Agencies” and “John Doe Distilleries” referred to in the Superseding Indictment as well as a copy of the specific, check, e-mail, and/or wire transfer confirmation referred to in each of the individual counts of the Superseding Indictment; (2) provide information pursuant to Rule 404(b) of the Federal Rules of Evidence ; (3) disclose information pursuant to Rule 807 of the Federal Rules of Evidence ; and (4) provide information pursuant to Brady v. Maryland, 373 U.S. 83, 84, 83 S.Ct. 1194, 1195, 10 L.Ed.2d 215 (1963) ; Giglio v. United States, 405 U.S. 150, 151, 92 S.Ct. 763, 764, 31 L.Ed.2d 104 (1972) ; and United States v. Bagley, 473 U.S. 667, 669, 105 S.Ct. 3375, 3377, 87 L.Ed.2d 481 (1985).

By way of background, on February 16, 2011, the Defendant, a resident of Plainview, New York, was arrested pursuant to a complaint, which charged him with one count of mail fraud occurring between December 1, 2007 and February 11, 2011. This count charged that the Defendant had defrauded two marketing and advertising agencies located outside of New York, Doe Agencies # 1 and # 2 by holding himself out to be a manager or operator for various ventures seeking advertising and marketing assistance. The alleged scheme involved the Defendant contacting a representative of the marketing or advertising agency about the formation of a new venture when, in fact, he had no agreements or contracts with the companies he claimed to represent and/or work with. Soon after, the Defendant would allegedly indicate that he needed the agency to represent the venture; solicit a monthly retainer of $3,500 to $8,000 for two to three months until the venture was to come to fruition and a contract could be entered; and accept monies, in person, by United States mail, private and commercial interstate carriers and wire transfers. However, the Defendant allegedly would then either cease further communications and/or explain that accidents and/or illnesses had befallen him and the promised ventures never, in fact, came to pass. The complaint specifically alleged mailings of payments by (1) Doe Agency # 1 between October 2008 and January 2009 to the Defendant at his Plainview residence and (2) a payment sent by Doe Agency # 2 between April and June 2009 via a private commercial interstate carrier to the Defendant at his Plainview residence.

On February 16, 2011, the Defendant appeared for arraignment before United States Magistrate Judge E. Thomas Boyle at which time he was released on a $25,000 secured bond. The Defendant waived his right to a preliminary hearing.

On March 21, 2011, the Defendant appeared before United States Magistrate Judge A. Kathleen Tomlinson and executed a request for an “Order of Excludable Delay,” waiving speedy indictment rights for the time period from March 15, 2011 to April 18, 2011 for the purpose of plea negotiations.

On April 13, 2011, Judge Boyle issued an “Order of Excludable Delay” for the time period from April 18, 2011 to May 19, 2011.

On May 13, 2011, the Defendant and then defense counsel Joseph Conway, Esq. allegedly signed and faxed to the Government a request, improperly dated May 16, 2011, for an “Order of Excludable Delay” for the time period from May 18, 2011 to June 17, 2011. In the Defendant's memorandum of law in support of the instant motion to dismiss, he denies signing this document. In the Defendant's affidavit submitted in support of the instant motion, the Defendant avers that “[t] to the best of my recollection, the Docket Entries accurately report the court proceedings from February 16, 2011 to January 27, 2012 as well the documents signed by me with respect to those court proceedings.” (Docket Entry No. 71–2, at ¶ 3.)

According to the Government, it signed this faxed copy, made a copy to keep in its file, and sent the original copy to the United States Magistrate Judge on duty via interoffice mail. However, for an unexplained reason, the order was never docketed.

On June 16, 2011, the Defendant appeared before United States Magistrate Judge Arlene R. Lindsay at which time the Defendant's counsel indicated that the Defendant wished to waive certain speedy trial rights as he had “been having meetings with the Government” which were “making progress” and which would “hopefully lead to resolution” of the charges. (Minutes, at p. 2.) Judge Lindsay inquired of the Defendant who agreed to an additional 30 day waiver of speedy indictment rights. Judge Lindsay then issued an “Order of Excludable Delay” for the time period from June 16, 2011 to July 15, 2011.

On July 7, 2011, the Government provided a plea agreement proposal to the Defendant. On July 15, 2011, the parties met in person. However, at this meeting, the parties could not consummate an agreement and the plea negotiations fell through. The Government indicated at this meeting that it would pursue an indictment of the Defendant.

That same day, the Government moved to dismiss the complaint without prejudice. Judge Lindsay “So Ordered” the dismissal.

On January 12, 2012, a Grand Jury returned an Indictment charging the Defendant with eight counts of mail fraud and six counts of wire fraud. The Indictment included mail fraud counts as to Doe Agencies # 1 and # 2, as well as counts involving criminal offenses as to twelve additional victim agencies.

On January 27, 2012, the Defendant pleaded not guilty to the fourteen-count Indictment.

During additional plea negotiations, the Defendant waived his speedy trial rights from January 27, 2012 to December 13, 2013.

On November 19, 2013, another grand jury returned a Superseding Indictment charging the Defendant with one additional count of mail fraud and four additional counts of wire fraud. The additional counts related to a second alleged scheme by the Defendant which targeted various beverage distilleries, in a manner similar to the scheme involving the agencies, by making false and fraudulent representations to the “John Doe Distilleries” about his ability to secure placement of their products through purported distributors located in New York State. The Defendant was accused of directing the “John Doe Distilleries” to send him advance commission fees in amounts ranging from $1,000 to $4,000 by U.S. mail, private commercial carriers, and electronic wire transfers. After the Defendant would receive the funds, he would allegedly discontinue substantive communications with the “John Doe Distilleries” and did not place their products or refund advanced commission fees to them as promised.

On November 22, 2013, the Defendant was arraigned on the Superseding Indictment at which time he pleaded not guilty.

On March 27, 2014, the Defendant filed the instant motion.

On October 23, 2014, another grand jury returned a Second Superseding Indictment charging the Defendant with two additional counts of wire fraud and one count of making a false statement in violation of 18 U.S.C. §§ 1001(a)(2) and 3551 et seq.

On January 9, 2015, the Defendant agreed, on the record, to convert the motion to dismiss the above-mentioned counts of the Superseding Indictment to a motion to dismiss the corresponding counts of the Second Superseding Indictment.

I. DISCUSSION

A. The Speedy Trial Act Claim

The Speedy Trial Act, 18 U.S.C. § 3161 et seq. establishes time limits for the completion of various stages of a federal criminal prosecution. Under the terms of the Act, subject to specified exclusions of time, the indictment must be filed within thirty days of the accused's arrest, and trial must begin within seventy days from the filing of the indictment. 18 U.S.C. §§ 3161(b), 3161(c)(1). “If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2). The “[d]efendant bears the burden of proof supporting such a motion.” United States v. Adams, 448 F.3d 492, 503 (2d...