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United States v. Lytle

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

April 17, 2018

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

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

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE

         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. Grim. 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 111., 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. McMullem 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 ...

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