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United States v. Lytle

United States District Court, D. South Dakota, Western Division

December 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT LARRY LYTLE, a/k/a Larry Lytle, IRINA KOSSOVSKAIA, and FREDRETTA L. EASON, Defendants.

          ORDER DENYING MOTION TO DISMISS INDICTMENT AND MOTION TO STAY JURY TRIAL

          KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE

         Defendant 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).[1] 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.

         BACKGROUND

         On January 26, 2017, an 18 count indictment was filed naming Lytle, Irina Kossovskaia, and Fredretta L. Eason as defendants.[2] 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.[3]See Docket 101-1 at 2-3.

         On 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.[4] Docket 97. January 22, 2018, remains the currently scheduled trial date. See id.

         On 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.

         On November 30, 2017, in Lytle's related civil case, the court entered an order denying various motions filed by Lytle.[5] 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.[6] See id., Docket 198.

         DISCUSSION

         I. Motion to Dismiss the Indictment

         Lytle 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.[7] 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 Docket 108.

         A. Relevant Law

         Under 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).

         One of 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 ...

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