US v. Lytle

• Decision Date: 15 April 1987
• Docket Number: No. 87 CR 135.,87 CR 135.
• Citation: 658 F. Supp. 1321
• Court: U.S. District Court — Northern District of Illinois
• Parties: UNITED STATES of America, Plaintiff, v. John R. LYTLE, et al., Defendants.

658 F. Supp. 1321

UNITED STATES of America, Plaintiff, v. John R. LYTLE, et al., Defendants.

No. 87 CR 135.

United States District Court, N.D. Illinois, E.D.

April 15, 1987.

Joseph J. Duffy, James R. Ferguson, Asst. U.S. Attys., Chicago, Ill., for plaintiff.

James P. Crowley, James R. Streicker, Matthew F. Kennelly, Chicago, Ill., for Lytle.

Burck Bailey, Warren F. Bickford, IV, Barbara G. Bowersox, Oklahoma City, Okl., for Patterson.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

This criminal prosecution has shown every sign of being snake-bitten from the very beginning. For a full understanding of the current motions to dismiss certain counts, a brief partial rehearsal of its checkered history is called for.

Originally defendants John Lytle ("Lytle"), William Patterson ("Patterson") and Jere Sturgis ("Sturgis") were indicted September 25, 1984 (in Case No. 84 CR 726), and the case was assigned to the calendar of this Court's colleague Honorable John Grady. After Patterson—seeking dismissal of the indictment on double jeopardy and other grounds—filed a successful appeal to the Seventh Circuit from the denial of that motion (United States v. Patterson, 782 F.2d 68 (7th Cir.1986)), the case was remanded to Judge Grady for the further review and consideration mandated by the Court of Appeals.

Before Judge Grady had acted to implement the mandate, he became Chief Judge of our District Court, and the resulting random reassignment of his criminal calendar eventuated in this case being transferred to this Court's calendar. Prompt review of the file disclosed a lurking (and inadvertent) Speedy Trial Act problem that had not been identified by either Judge Grady or the litigants. After the litigants had filed the requested memoranda addressing that subject, this Court found itself compelled to dismiss the indictment on Speedy Trial Act grounds July 17, 1986— but given the unintended nature of the statutory violation, this Court exercised its discretion by ordering that dismissal without prejudice rather than with prejudice (see 18 U.S.C. § 3162(a)(2)).

On November 24, 1986 a new indictment (86 CR 847) was returned by the Special December 1983 Grand Jury. During the course of the parties' briefing of various motions (including some still carried over from Judge Grady's period as the presiding judge in the case), Patterson's counsel raised a question as to the regularity of that new indictment. Though Patterson's attack was on somewhat different grounds, this Court's own research indicated the litigants had misread the applicable statute. Its February 4, 1987 memorandum opinion and order ("Opinion 1," App. 1 to this opinion) and its supplemental memorandum order of February 18, 1987 ("Opinion 2," App. 2 to this opinion) resulted in the February 18 dismissal of the indictment—again without prejudice—because the 1986 "indictment" had been returned by a grand jury whose term had expired, so that it was no longer authorized to conduct any business.

Nothing daunted, the government has returned to the fray with still another indictment (87 CR 135) returned March 3, 1987— obviously hoping the third time would prove the charm.¹ Now Lytle and Patterson seek dismissal of a number of the counts of the most recent indictment on statute of limitations grounds.² To resolve their motion it becomes necessary to deal with issues involving all three indictments.

Effect of Dismissal of the 1984 Indictment

Even if it were assumed the 1986 indictment was either (1) valid or (2) had some legal effect even though invalid—both subjects dealt with later in this opinion—the fact remains that when it was returned on November 24, 1986, more than five years had elapsed since some of the events it charged as criminal offenses:

                Count Number in            Date of Alleged Offense
                1987 Indictment
                    Three                    April 22, 1981
                    Four                     July 16, 1981
                    Seven                    August 12, 1981
                    Sixteen                  September 30, 1981
                

Lytle and Patterson therefore urge the statute of limitations bars those charges, which have continued in identical form and numbering from the 1986 indictment into the 1987 indictment.

Within a few days after that issue was raised and a briefing schedule had been ordered, this Court wrote a letter to all counsel drawing their attention to the very recent decision by the Court of Appeals for the Ninth Circuit in United States v. Peloquin, 810 F.2d 911 (9th Cir.1987), dealing with that identical question and ruling for defendant and against the government. What Peloquin said in brief was this:

1. In relevant part, 18 U.S.C. § 3288 ("Section 3288") gives the government the opportunity to reindict a defendant within six months after "an indictment is dismissed for any error, defect, or irregularity with respect to the grand jury, or ... is found otherwise defective or insufficient for any cause, after the period prescribed by the applicable statute of limitations has expired...." If the new indictment is returned in that six-month window period, it "shall not be barred by any statute of limitations."

2. Dismissal of an indictment because a defendant was not brought to trial within the time period mandated by the Speedy Trial Act³ involves no flaw at all in the indictment, but is rather based solely on post-indictment events. That means the indictment itself was not "defective or insufficient" within the language or meaning of Section 3288.

3. That being so, Section 3288 does not come into play to save a new indictment brought after expiration of the statute of limitations. Hence the government does not have a free six months after a Speedy-Trial-Act-triggered dismissal in which it may reinstate the charges. Instead the timeliness of any new indictment must be decided by measuring its date against the date of the alleged offense —without reference to the original indictment at all.

Were this opinion to begin to quote Peloquin, it would not know when to stop: It is as though the opinion had been written for this case, and it is really unanswerable in terms of the statutory language and purpose of Section 3288.

Hence the Peloquin rule (and in this Court's view the correct one) is that the normal statute of limitations rules apply to any new indictment brought after an earlier one has been dismissed for Speedy Trial Act reasons—the date of the offense is compared with the date of the new indictment, and if the intervening time gap exceeds five years, the charged offense is barred by limitations. In response the government points to a series of cases that deal with a very different question: whether a new indictment returned while an earlier one is pending (a so-called "superseding" indictment) is timely even though that second grand jury action has taken place more than five years after the event charged. United States v. Sears, Roebuck & Co., 785 F.2d 777, 778-79 (9th Cir.) (per curiam), cert. denied, ___ U.S. ___, 107 S.Ct. 580, 93 L.Ed.2d 583 (1986); United States v. Friedman, 649 F.2d 199, 203-04 (3d Cir.1981); United States v. Grady, 544 F.2d 598, 601 (2d Cir.1976); United States v. Wilsey, 458 F.2d 11, 12 (9th Cir. 1972) (per curiam); United States v. Garcia, 412 F.2d 999, 1000-01 (10th Cir.1969); United States v. Chagra, 638 F.Supp. 1389, 1394-95 (W.D.Tex.1986); United States v. Drucker, 453 F.Supp. 741, 742-43 (S.D.N. Y.), aff'd mem., 591 F.2d 1332 (2d Cir. 1978), cert. denied, 440 U.S. 963, 99 S.Ct. 1510, 59 L.Ed.2d 778 (1979). Those cases, however, simply cannot carry the baggage the United States seeks to place on their shoulders.

To give the government its due, the discussion in many of those cases does speak of "tolling." And the "tolling" of limitations is a term most often used to express the concept of interrupting the continuous flow of the passage of time, to be resumed afresh once the tolling ends. In that sense, if (say) four years of a five-year limitations period had elapsed before the tolling event occurred, once the tolling has stopped another year would still remain before the statute of limitations would bar bringing the criminal charge—and that would be so whether the tolling period had been a month, a year or even ten years.

But that meaning of "tolling," even if the one most frequently employed, is not the only possible usage of the term. "Tolling" can also describe the concept in which the return of an indictment renders timely any restatement of its charges—the familiar "superseding" indictment⁴—while the earlier indictment is pending. That is certainly the holding of every case on which the government now relies, and to ascribe any greater meaning to such cases' use of the word "tolling"—at least in the present context—would impermissibly elevate what is not even dictum to the level of precedential authority.

What the government argues here as a "tolling" approach was also tendered by the government as a "fall back position" in Peloquin, 810 F.2d at 913—and it was flatly rejected by the Court of Appeals. Though from the Peloquin opinion it does not appear the government argued the same line of cases there as those cited here, it is a bit disingenuous for government counsel here to charge the Ninth Circuit with having "made no effort to address cases in its own circuit" (Govt.Mem. 5, emphasis in original)—one of those cases being less than a year old (Sears, Roebuck) and the other case being one of the leading cases that spawned its successors (Wilsey). It can scarcely be assumed the Court of Appeals was either unaware of or blithely disregarded its own precedents. To the contrary, the obvious reason those cases were not dealt with in Peloquin is that they simply do not treat with the same issue that was posed in Peloquin and is posed in this case.

Indeed the memorandum filed by Lytle's counsel correctly points out the government's theory proves too much. Section 3288 is one of a pair of statutes—by its terms it applies to...