USA v. Lytle et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ROBERT LARRY LYTLE,
a/k/a Larry Lytle, and|
IRINA KOSSOVSKAIA,
Defendants.
5:17-CR-50020-01-02-RAL
OPINION AND AMENDED SCHEDULING
ORDER FOR RESTITUTION
DETERMINATION
AND HEARING
UNITED STATES OF AMERICA,
Plaintiff,
5:I7-CR-50022-RAL
vs.
RONALD D. WEIR,
Defendant.
These cases are related and involve overlapping groups of victims. On April 20, 2018, the
Court conducted a partially combined sentencing hearing so that victims did not need to thrice address
the Court and for the sake ofjudicial economy. The Court then conducted separate sentencing hearings
to sentence each defendant separately. With regard to each defendant, the Court left the question of
i
restitution under 18 U.S.C. §§ 3663 and 3664 open for 90 days and encouraged counsel to work
I
together to determine within that time how much restitution each defendant owed and to whom. The
Case 5:17-cr-50020-RAL Document 314 Filed 07/20/18 Page 1 of 5 PageID #: <pageID>

Court signed Judgments in these cases on April 23, 2018, confirming that restitution was left open for
a 90-day period.
This Court previously entered a Scheduling Order for Restitution Determination and Hearing,
Doc.285 in 17-CR-50020-RAL,Doc.72 in 17-CR-50022-RAL, setting an evidentiary hearing for July
30, 2018, ifthe parties could not agree to restitution amounts, and firrther setting certain deadlines for
disclosing exhibits, witnesses, and restitution calculations. Meanwhile, Defendant Robert Larry Lytle
fired his privately retained attomey and sought to have the Court appoint him counsel for his appeal.
Ultimately, on July 6, 2018, this Court appointed Nathaniel F. Nelson as Lytle's counsel to handle the
restitution hearing. Docs. 298,299 in 17-CR-50020-RAL. The United States Court of Appeals for the
Eighth Circuit separately appointed attomey Nelson to handle Lytle's appeal as well. Nelson,on behalf
of Lytle, on July 13, 2018, filed separate motions to continue forfeiture hearing and to continue
restitution hearing. Does. 307, 308 in 17-CR-50020-RAL, indicating that he could not be sufficiently
prepared by July 30 because of the thousands of pages of case material and complexity of restitution
issues. Indeed, the amount ofrestitution and people or entities to whom restitution should be paid are
not altogether straightforward. The Government does not oppose postponing the restitution hearing.
Doc. 313 in 17-CR-50020-RAL. Defendant Irina Kossovskaia likewise informally requested through
her attomey postponement ofthe hearing.
Defendant Ronald D. Weir Jr. has filed his own Motion to Continue, Doc. 80 in 17-CR-50022-
RAL, representing that he needs additional time to see if an agreement can he reached on restitution
and to review the approximately 1,000 pages of documents that the Government submitted as part of
restitution hearing exhibits. The Government does not object to that motion. Doc. 81 in 17-CR-50022-
I
RAL.
The postponement of the restitution determination beyond the 90-day period specified in 18
U.S.C. § 3664(d)(5) does not affect this Court's abfiity to award restitution under the circumstances.
In Dolan v. United States, the Supreme Court held that "a sentencing court that misses the 90-day
2
Case 5:17-cr-50020-RAL Document 314 Filed 07/20/18 Page 2 of 5 PageID #: <pageID>

deadline [to impose restitution under the Mandatory Restitution Act] nonetheless retains the power to
order restitution—at least where, as here, the sentencing court made clear prior to the deadline's
; \
expiration that it would order restitution, leaving open (for more than 90 days)only the amount." 560
I
U.S. 605,608 (2010). In Dolan. the district court sentenced the defendant on July 30, 2007, but held
the issue of restitution open because it lacked information regarding hospital costs and lost wages
which was required to determine the amount of restitution that would be owed. Id The district court
entered a judgment which indicated that restitution was mandatory, but that the court lacked sufficient
information to set it at the time of sentencing and so "the Court will not order restitution at this time."
Id. The Probation Office provided the district court with an addendum to the presentenee report on
October 5, 2007, which was 23 days prior to the 90-day deadhne. However, the district court set the
restitution hearing for February 4, 2008, whieh was roughly three months after that 90-day deadhne.
Id. at 609. At his restitution hearing, the defendant argued that because the 90 days had passed, the
district court was no longer authorized to impose restitution. Id In upholding the district court's
authority to impose restitution after the 90-day period has passed, the Supreme Court in Dolan
determined that 18 U.S.C. § 3664(d)(5) imposes a deadline which "seeks speed by creating a time-
related directive that is legally enforceable hut does not deprive a judge or other publie official ofthe
power to take the action to which the deadhne apphes if the deadline is missed." Id at 611.
Importantly, the Court noted that even when a court misses the 90-day deadhne "through its own fault
or that of the Government," it would sthl retain the power to order restitution. Id
The Eighth Circuit has also recognized a district court's continuing authority to impose
restitution after the 90-day period in § 3664(d)(5) has passed, even when the defendant did not know
precisely what the nature ofthat restitution would be. In United States v. Zaie. 744 F.3d 1040(8th Cir.
I
2014), the district court initially awarded restitution at the defendant's sentencing hearing for child
support arrearages, but was uncertain whether it could award restitution for healthcare premiums and
!
ordered briefing from the parties on that question. Id at 1041. The Government in its brief conceded
Case 5:17-cr-50020-RAL Document 314 Filed 07/20/18 Page 3 of 5 PageID #: <pageID>

that restitution was not warranted for insurance premiums, but sought restitution for past medical
expenses not covered by insurance. Id at 1042. The district court eventually held a restitution hearing
(after the 90-day period) where it awarded restitution for the past medical expenses. The defendant in
Zaie argued that his case was distinguishable from Dolan because he was not put on notice that
additional restitution would be sought for medical expenses, but rather the district court had left open
the legal question of whether insuranee premiums could be awarded as restitution. Id at 1044. The
Eighth Circuit rejected this argument, noting that the district court had stated at the sentencing hearing
that it had 90 days to determine "any additional restitution." Id The Eighth Circuit determined that
the defendant "was on notice that he would have to pay restitution, though the amount was subject to
change." Id
Here all three defendants are on notice of a restitution obhgation and further all three
defendants are seeking postponement of the restitution evidentiary hearing beyond the 90-day period
in § 3664(d)(5). This Court under the circumstances clearly retains authority to determine and order
restitution even after the 90-day period elapses. Based on consultation with counsel, September 21,
2018, appears to be the best date for an evidentiary hearing on restitution. Therefore, it is hereby
ORDERED that a combined restitution evidentiary hearing is scheduled for Friday,
September 21, 2018, at 9 a.m. MT, at the United States Courthouse in Rapid City, South Dakota, at
which time the Court will hear evidence and determine separately the amount of restitution owed by
each defendant, unless the parties are able to agree to restitution amounts before that date. It is further
ORDERED that the United States (if it has changes to its previously filed witness and exhibit
lists) disclose on or before August 30, 2018, to the Court, and opposing counsel aU proposed exhibits,
witness list, and restitution calculation for each separate defendant. It is further
ORDERED thaj each defendant disclose on or before September 12, 2018, to the Court, the
United States, and the other defendants any exhibits, witnesses, and alternative restitution calculations.
It is fiarther I
Case 5:17-cr-50020-RAL Document 314 Filed 07/20/18 Page 4 of 5 PageID #: <pageID>

ORDERED that if there is agreement on restitution amounts and victims between the United
States and any defendant, the Court will forthwith enter an order and that any remaining dispute as to
restitution amounts or victims will be resolved at the September 21, 2018 hearing. It is finally
ORDERED that Defendant Lytle's motions. Docs. 307, 308 in 17-CR-50020-RAL, and
Defendant Weir's motion. Doc. 80 in 17-CR-50022-RAL, are granted to the extent set forth in this
Order, although the Court contemplates an evidentiary hearing on restitution and not on any forfeiture
issue, although counsel for Lytle may make any argument he wishes regarding forfeiture.
DATED this 20th day ofJuly, 2018.
BY THE COURT;
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
Case 5:17-cr-50020-RAL Document 314 Filed 07/20/18 Page 5 of 5 PageID #: <pageID>