United States v. Solnin
2015 WL 332132
E.D.N.Y2015Background
- Defendant Gilbert Solnin was arrested on Feb 16, 2011 on a mail-fraud complaint alleging schemes against two marketing/advertising agencies; subsequently indicted and later superseded twice (most recently Oct 23, 2014 Second Superseding Indictment).
- Complaint originally alleged two mail-fraud victims (Doe Agencies #1 and #2); later indictments added many more victims and counts (mail and wire fraud; later false-statement count).
- Between Feb–July 2011 parties engaged in plea negotiations and executed multiple signed “Orders of Excludable Delay”; one purported exclusion (May 18–Jun 17, 2011) was allegedly signed but was never entered on the docket.
- The 30-day Speedy Trial Act clock for indictment expired May 22, 2011; the indictment was filed Jan 12, 2012 (approx. eight months of unexcluded time).
- Defendant moved to dismiss certain counts under the Speedy Trial Act; also sought bills of particulars (identities of John Doe victims, transaction documents), Rule 404(b) and Rule 807 disclosures, and Brady/Giglio/Bagley material.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Solnin) | Held |
|---|---|---|---|
| Whether Speedy Trial Act (18 U.S.C. §3161) was violated by failure to docket May 18–Jun 17, 2011 exclusion | No violation because Government forwarded signed exclusion to duty magistrate and the omission was clerical; Government not culpable | Violation: exclusion was not entered so un-excluded days ran past 30-day limit; defendant denies signing the excluded-order | Court found a Speedy Trial Act violation as to the specific counts that were in the complaint and untimely (Counts Four and Seven) because the exclusion was not docketed and un-excluded time elapsed |
| Scope of dismissal—whether all newly-charged counts are affected | Only counts that mirror the original complaint are subject to dismissal | Seeks dismissal of multiple counts in superseding indictment | Court limited dismissal to only the charges that matched the original complaint (Counts Four and Seven); additional counts were newly charged and have their own clocks |
| Remedy—dismiss with or without prejudice | Dismissal without prejudice because delay was inadvertent, crimes are serious, and no bad faith | Dismissal with prejudice given eight-month delay and prejudice to rights | Court dismissed Counts Four and Seven without prejudice, finding seriousness of offenses, lack of bad faith/pattern, and little actual prejudice favored reprosecution |
| Ancillary discovery requests (Bill of Particulars, Rule 404(b), Rule 807, Brady/Giglio/Bagley) | Government agreed (or represented willingness) to provide victim identities and underlying documents, will give Rule 404(b) notice 45 days before trial, will comply with Brady/Giglio/Bagley; Rule 807 none identified yet | Requested formal orders compelling disclosure | Court ordered production of John Doe identities and corresponding records within 30 days, required Rule 404(b) notice 45 days before trial, denied Rule 807 request as moot, and found no court order necessary for Brady/Giglio/Bagley compliance |
Key Cases Cited
- United States v. Gaskin, 364 F.3d 438 (2d Cir. 2004) (untimely superseding indictment adding new charges not subject to original complaint’s 30‑day clock)
- United States v. Napolitano, 761 F.2d 135 (2d Cir. 1985) (only charges in the complaint are subject to §3161(b) dismissal)
- United States v. Taylor, 487 U.S. 326 (1988) (factors for dismissal with or without prejudice under the Speedy Trial Act)
- United States v. Giambrone, 920 F.2d 176 (2d Cir. 1990) (pattern of neglect may warrant dismissal with prejudice)
- United States v. Kiszewski, 877 F.2d 210 (2d Cir. 1989) (seriousness of the offense weighs in favor of dismissal without prejudice)
- Zedner v. United States, 547 U.S. 489 (2006) (seriousness factor interpretation and Speedy Trial Act sanction considerations)