United States District Court, D. South Dakota, Western Division
ORDER DENYING MOTION TO DISMISS INDICTMENT AND MOTION
TO STAY JURY TRIAL
E. SCHREIER, UNITED STATES DISTRICT JUDGE
Robert Larry Lytle moves to dismiss the indictment with
prejudice because this matter was instituted by an attorney
not authorized to practice before this court. Docket 103.
Lytle also moves for the court to stay the jury trial for
this case until such time as the United States Court of
Appeals for the Eighth Circuit decides the appeal currently
pending in the civil matter captioned: United States of
America v. 2035, Inc., a corporation, and Robert L. Lytle, an
individual, d/b/a/2035 PMA and QLASERS PMA, No. 17-2421
(8th Cir. appeal docketed June 28, 2017). Docket 106.
Plaintiff, the United States, opposes Lytle's motions.
Dockets 108, 109. For the reasons stated below, the court
denies both Lytle's motion to dismiss the indictment and
his motion to stay the jury trial for this matter.
January 26, 2017, an 18 count indictment was filed naming
Lytle, Irina Kossovskaia, and Fredretta L. Eason as
defendants. Docket 2. The indictment is signed by the
grand jury foreperson; by Ted L. McBride, an Assistant United
States Attorney in the District of South Dakota; and by Ross
S. Goldstein, a trial attorney from the Consumer Protection
Branch of the United States Department of Justice.
Id. The indictment was returned to United States
Magistrate Judge Daneta Wollman in open court by the grand
jury foreperson, attorney McBride, and attorney Goldstein on
the same day.See Docket 101-1 at 2-3.
January 31, 2017, the court issued a scheduling and case
management order for this matter as to Lytle and Eason.
Docket 22. On March 21, 2017, following the initial
appearance of Kossovskaia, the court issued a scheduling and
case management order as to all three defendants. Docket 61.
This order set the trial date for May 30, 2017. Id.
Since March 21, 2017, the court has granted three additional
continuances requested by the parties. See Dockets
69, 90, 97. The most recent continuance order set Monday,
January 22, 2018, as the trial date for this
case. Docket 97. January 22, 2018, remains the
currently scheduled trial date. See id.
September 28, 2017, Lytle filed his first motion to dismiss
the indictment in this case. Docket 98. In that motion, Lytle
argued that Rule 6(f) of the Federal Rules of Criminal
Procedure required dismissal of the indictment because the
docket for this case did not reflect that the grand jury
foreperson or deputy foreperson returned the indictment to a
magistrate judge in open court. Id. at 2. In
response to Lytle's motion, the United States submitted
the transcript from the January 26, 2017, return of
indictment hearing that showed that the indictment was
returned to Magistrate Judge Wollman in open court by the
grand jury foreperson, attorney McBride, and attorney
Goldstein. Docket 101-1 at 2-3. Thus, because the United
States fully complied with the requirements of Federal Rule
of Criminal Procedure 6(f), the court denied Lytle's
motion to dismiss the indictment. Docket 102 at 3.
November 30, 2017, in Lytle's related civil case, the
court entered an order denying various motions filed by
Lytle. See United States v. 2035, Inc.,
5:14-CV-5075-KES, Docket 210 (D.S.D. November 30, 2017). One
of the motions denied by the court was Lytle's motion to
alter or amend the court's May 4, 2017 order under Rule
59(e) of the Federal Rules of Civil Procedure. See
id., Docket 210 at 6-9. Lytle filed his Rule 59(e)
motion on May 17, 2017. Id., Docket 210 at 6. On
June 26, 2017-after Lytle had already filed his Rule 59(e)
motion-Lytle filed a notice of appeal with the Eighth Circuit
Court of Appeals, appealing this court's May 4, 2017
order. See id., Docket 198.
Motion to Dismiss the Indictment
moves to dismiss the indictment in this case for a second
time. In the present motion to dismiss, Lytle first argues
that this action is void because the action was instituted by
attorney Goldstein, a lawyer who was not admitted to practice
before this court when he appeared before the grand jury.
Docket 103 at 1-5. Lytle's second argument is that
attorney Goldstein's presence before the grand jury,
while not admitted to practice before this court, is either a
prejudicial error under Federal Rule of Criminal Procedure
6(d) or a violation of Lytle's Fifth Amendment due
process rights. Id. at 6-7. In response, the
United States argues that attorney Goldstein's
participation in this matter is proper under the relevant
statutory authority and Eighth Circuit case law. See
the Federal Rules of Criminal Procedure, only the following
persons “may be present while the grand jury is in
session: attorneys for the government, the witness being
questioned, interpreters when needed, and a court reporter or
an operator of a recording device.” Fed. R. Crim. P.
6(d)(1). The term “Attorney for the government”
is defined by the Federal Rules of Criminal Procedure to
include “(A) the Attorney General or an authorized
assistant; (B) a United States attorney or an authorized
assistant; . . . and (D) any other attorney authorized by law
to conduct proceedings under these rules as a
prosecutor.” Fed. R. Crim. P. 1(b)(1).
the duties of the Department of Justice, under the direction
of the Attorney General, is the duty to conduct all
litigation in which the United States is a party. 28 U.S.C.
§ 516. To help the Attorney General meet this duty,
Congress has provided that
[t]he Attorney General or any other officer of the Department
of Justice, or any attorney specially appointed by the
Attorney General under law, may, when specifically directed
by the Attorney General, conduct any kind of legal
proceeding, civil or criminal, including grand jury
proceedings and proceedings before committing magistrate
judges, which United States attorneys are authorized by law