United States v. Lytle, 5:17-CR-50020-RAL-1

• Decision Date: 17 April 2018
• Docket Number: 5:17-CR-50020-RAL-1
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ROBERT LARRY LYTLE, a.k.a. Larry Lytle, Defendant.
• Court: U.S. District Court — District of South Dakota

UNITED STATES OF AMERICA, Plaintiff, v. ROBERT LARRY LYTLE, a.k.a. Larry Lytle, Defendant.

5:17-CR-50020-RAL-1

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

April 17, 2018

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA AND DENYING MOTION TO WITHDRAW AS COUNSEL

Defendant Robert Larry Lytle, a.k.a. Larry Lytle ("Lytle") entered into a plea agreement and then pleaded guilty on January 26, 2018, to one count of criminal contempt in violation of 18 U.S.C. § 401(3), one count of conspiracy to introduce misbranded medical devices into interstate commerce with the intent to defraud and mislead in violation of 18 U.S.C. § 371 and 21 U.S.C. §§ 331 and 333(a)(2), and one forfeiture allegation pursuant to 21 U.S.C. §§ 334 and 853, and 28 U.S.C. § 2461. Doc. 178. On April 10, 2018, Lytle moved to withdraw his guilty plea and submitted an affidavit asserting 11 different bases to attempt to justify his proposed withdrawal. Doc. 210; Doc. 210-1. For the reasons stated below, this Court denies Lytle's motion.

I. Standard for a Motion to Withdraw a Guilty Plea

A defendant may withdraw a guilty plea after a court accepts the plea but before it imposes sentence if the defendant "can show a fair and just reason for requesting the withdrawal." United States v. Arafat, 789 F.3d 839, 843 (8th Cir. 2015) (quoting Fed. R. Crim. P. 11(d)(2)(B)). "While the standard is liberal, the defendant has no automatic right to withdraw a plea." United States v. Sharp, 879 F.3d 327, 333 (8th Cir. 2018). "A defendant bears the burden of establishing a fair and just reason." Id. Indeed, "[p]leading guilty is a solemn act not to be set aside lightly." United States v. Briggs, 820 F.3d 917, 919 (8th Cir. 2016) (internal quotation marks omitted).

"Even if a defendant shows a fair and just reason for withdrawal, the court must consider other factors before granting the motion, namely, whether the defendant asserts his innocence of the charge, the length of time between the guilty plea and the motion to withdraw it, and whether the. government will be prejudiced if the court grants the motion." United States v. McHenry, 849 F.3d 699, 705 (8th Gir. 2017) (internal quotation marks omitted). However, a court need not consider these additional factors if a defendant fails to demonstrate fair and just grounds justifying the withdrawal of his plea. United States v. Norvell, 729 F.3d 788, 793 (8th Cir. 2013).

II. Discussion

Lytle makes numerous contentions to seek to justify granting his motion to withdraw his guilty plea. Some of these reasons are closely related and this Court addresses them together where appropriate.

Deficient Legal Basis for Prosecution

Lytle argues that his motion to withdraw his guilty plea should be granted because no law, which is valid under the Constitution of the United States, has been violated, nor is there a victim who has been injured by any of Lytle's actions. These claims are frivolous. Lytle has been charged with, and pleaded guilty to, crimes under statutes whose constitutionality is established. See Bloom v. State of Ill., 391 U.S. 194, 203-04 (1968) (recognizing that 18 U.S.C. § 401 codifies the power to punish criminal contempt); United States v. Hiland, 909 F.2d 1114, 1127 (8th Cir. 1990) (holding that Federal Food, Drug, and Cosmetic Act provision prohibiting marketing of unapproved drug with intent to defraud or mislead was not unconstitutionally vague). As to Lytle's claims that there are no victims, such assertions by a defendant do not constitute fair and just reasons to allow him to withdraw his guilty plea when he is charged pursuant to valid laws. Indeed, the absence of identifiable victims—which is actually not the case here—does not render behavior outlawed by criminal statutes to be lawful, as a panoply of federal drug offenses demonstrate.

Ineffective Assistance Claims

"Defense counsel's performance can serve as the requisite 'fair and just reason' for withdrawal only if the defendant demonstrates both that his attorney's performance was deficient and that he was prejudiced by it." Norvell, 729 F.3d at 795 (quoting United States v. McMullen, 86 F.3d 135, 137 (8th Cir. 1996)). However, while ineffective assistance of counsel may constitute a ground upon which to withdraw a guilty plea, the Eighth Circuit has observed that such claims are "usually best litigated in collateral proceedings," with the benefit of a more fully developed record. United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006) (declining to consider, on defendant's direct appeal, his argument that he should have been permitted to withdraw his guilty plea due to ineffective assistance of counsel).

Lytle's ineffective assistance claims appear to be meritless. Lytle alleges that his attorney Ellery Grey ("Grey") "forgot" to put a clause in the plea agreement to protect his "constitutionally secured right to [a]ppeal, trial by jury and other rights[,]" and that Lytle would "never knowingly or willingly" have waived his right to challenge his indictment. Doc. 210-1 at ¶ 31. Lytle argues that Grey's failure to inform him of the procedures for entering a conditional plea thus constitute ineffective assistance. Doc. 210-1 at ¶ 32. The United States Attorney of course would never enter into a plea agreement where a defendant preserves his jury trial rights because a primary purpose of a plea agreement is to obtain a conviction on some count or counts without the time and expense of a jury trial. The United States Attorney rarely enters into a plea agreement where a defendant preserves rights to challenge an indictment on appeal, and regardless Lytle has the right to challenge jurisdiction of this Court on appeal. Lytle was fully informed during his change of plea hearing that he was waiving his rights to appeal most aspects of his case.

The Court: In your Plea Agreement it indicates you have waived, which means you've given up, your right to appeal everything about your case, except if I sentence you higher than your advisory guideline range. You can appeal whether that's reasonable or not. Or if you think the Court doesn't have jurisdiction over you or your case, you can appeal whether there's jurisdiction. But you've given up your right to appeal everything else about your case. Do you understand that?

[Lytle]: Yes.

Doc. 231 at 9-10.

Lytle's argument that he would never have waived his right to challenge his indictment is "plainly contradicted by the Rule 11 colloquy at [Lytle's] change-of-plea hearing." United States v. Trevino, 829 F.3d 668, 672 (8th Cir. 2016); see also United States v. Cruz, 643 F.3d 639, 642-43 (8th Cir. 2011); United States v. Green, 521 F.3d 929, 932 (8th Cir. 2008). Indeed, Lytle's claims for ineffective assistance are further undermined by the fact that he does not have a right to enter a conditional plea, but may do so only if the Government consents. See United States v. Smith, 422 F.3d 715, 724 (8th Cir. 2005) (noting that a defendant's argument to withdraw his guilty plea was undermined by the fact that the Government's consent to a conditional plea "was not forthcoming" prior to entering his guilty plea). Moreover, Lytle's history of withdrawing from his earlier plea agreement before his change of plea demonstrates his relative sophistication and understanding of his rights to enter or not enter into a plea agreement. Lytle was fully informed that he was giving up certain rights to appeal, and he entered his plea knowingly and voluntarily. He has no viable claim that ineffective assistance from his counsel led him to give up those rights.

Coercion Claims

Lytle claims that the Government coerced him into entering a guilty plea by agreeing to dismiss the charges against his wife, Fredretta Eason. Doc. 210 at 3. However, Lytle testified at his change of plea hearing that he was entering into his guilty plea voluntarily and specifically rejected the notion that he was doing so based on coercion.

The Court: Has anyone made any promise or assurance to you that's not written down in writing in the Plea Agreement or the Plea Agreement Supplement to try to persuade you to accept those agreements?

[Lytle]: No

The Court: Has anyone threatened you in any way to try to persuade you to accept those agreements?

[Lytle]: No.

. . .

The Court: Mr. Lytle, has anyone attempted in any way to force you to plead guilty today?

[Lytle]: No.

The Court: Has anyone threatened you to try to make you plead guilty?

[Lytle]: No.

The Court: Are you pleading guilty of your own free will because you are guilty?

[Lytle]: Yes.

Doc. 231 at 5-6.

The Rule 11 colloquy at Lytle's change of plea hearing clearly demonstrates that Lytle was not entering the plea based on any form of coercion, but rather of his own accord and free will. "Allegations that contradict a defendant's statements at the change of plea hearing are inherently unreliable." McHenry, 849 F.3d at 706 (internal quotation marks omitted). "The district court inquired fully into [Lytle's] state of mind at the time of the change of plea hearing, whether he had adequately reviewed and considered the plea agreement, and whether he understood the plea agreement and the consequences of pleading guilty." United States v. Austin, 413 F.3d 856, 858 (8th Cir. 2005) (per curiam); see also United States v. Dotstry, No. 16-346 (SRN/HB), 2017 WL 5462183, at *6 (D. Minn. Nov. 13, 2017) (rejecting defendant's motion to withdraw guilty plea based on coercion where "[a]t the change of plea hearing, [defendant] testified that he entered the plea voluntarily, of his own free will and absent any coercion"). Lytle's allegations of coercion, plainly contradicted by his testimonyat his change of plea hearing, fail to constitute fair and just reasons to allow him to withdraw his guilty plea now.

Denial of a Trial by Jury in Civil Case

Lytle argues that because he was denied his request for a jury trial in the civil case "that initiated all federal actions against" him, he...